# [2007] 7 S.C.R. 116

- **Citation:** [2007] 7 S.C.R. 116
- **Court:** Supreme Court of India
- **Decided:** 2007-05-17
- **Bench:** B.P. Singh, T Arun Chatterjee, P.K. Balasubramanyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2007-7-s-c-r-116-23035
- **Pages:** 64

## Headnote

Constitution of India, 1950:
c
Article 317-Reference-Member of Public Service CommissionMalpractices in respect of certain Examination-Arrest of the MeinberSubsequently released on bail-Suspended by President of India-On a
Reference to Supreme Court, HELD: Non-disclosure of her daughter being a
candidate in the Examination amounts to misconduct and thus the charge
answered in the affirmative-On another charge certain observations madeD Thus she did not behave in a manner befitting a member of a constitutional
,;,;a.
body like· the Public Service Commission.
The reference under Article 317 of the Constitution oflndia relates to
the conduct of the respondent, a member of the Maharashtra Public Service .
Commission and as to whether she is liable to be removed from office on the
;--
E ground of misbehaviour.
,-
Respondent joined the Maharashtra Public Service Commission as a
member on 8.5.2001. She was arrested on 8.6.2003 in a crime registered in
connection with a complaint lodged by the Public Service Commission relating
F
to mal-practices in respect of an examination conducted in the year 1999.
Twenty one others were also arrested. The respondent was lodged in jail The
Governor of Maharashtra requested the President of India to initiate action
i.
under Article 317 of the Constitution of India for her removal. He also
suspended her from office until an order had been passed by the President
under clause (1) of Article 317 of the Constitution. The respondent was
G subsequently released on bail.
Thus, the reference came to be made to this Court under Article 317(1)
of the Constitution of India.
The following were the charges framed by this Court based on the
"
I
H
116
...
I
1
SAY ALEE SANJEEV JOSHI, MEMBER. MAHARASHTRA PUBLIC SER VICE COMMISSION
117
suggestions of the Attorney General for India on examination of the relevant A
materials.
Charge-I
Whereas Ms. Sayalee Joshi has, directly or indirectly, tried to protect
the interests of 24 candidates who appeared in an examination B
conducted by the MPSC and has also attempted to influence an officer
of the Commission to do such illegal actions in the future in
conjunction with one Mr. Nitin Sathe.
Charge-2
Whereas the respondent no.3, Ms. Sayalee Joshi committed an act
of misbehaviour by interfering with an internal inquiry being
conducted by the Secretary of MPSC regarding alleged malpractices
in the examination for PSI/Asstt/STI conducted by the MPSC.
Charge-3
Whereas Ms. Joshi deliberately and in a ma/a fide manner omitted
to disclose a very vital fact to the Commission, namely that her
daughter was appearing for an examination being conducted by MPSC,
which disclosure was mandatory as per Office Order No.4/1998
dated 5.5.1998 of the MPSC and hence sought to suppress vital and
material information from the Commission, which affects her integrity
and complete devotion to duty in an impartial manner, amounting to
misbehaviour under Article 317(1) of the Constitution.
Charge-4
Whereas Ms. Joshi, in collusion with Mr. Nitin Sathe, attempted to
sabotage lodging of a complaint by a candidate as regards malpractices
in the examination conducted by the MPSC for the posts of PSl/Asstt/
STI and hence abused her official position and acted contrary to the
interest of the Commission and the candidates, and is guilty of
misbehaviour under Article 317(1) of the Constitution.
Answering the Reference, the Court
HELD: 1.1. There is evidence to show that on 25.4.2002, P. W.15 Sarode
visied the respondent at her flat. The visit is recorded in the visitors' book
c
D
G
kept at Nilambari, the building in which the Oat is situate. The respondent H
118
SUPREME COURT REPORTS
[2007) 7 S.C.R.
A has also admitted this visit. It is the charge that, at this meeting, Nitin Sathe,
a person who was involved in the 1996 examination scam and who was also
arrested in connection with the 1999 examination scam was also present The
presence of Nitin Sathe is sought to be proved by the evidence of P.W.15
Sarode, supp

## Text

_Characters 0–39,972 of 181,064. This is a partial read: ask again with offset=39972 for what follows._

A
REF: SMT. SA YALEE SANJEEV JOSHI, MEMBER, MAHARASHTRA
..
PUBLIC SERVICE COMMISSION
~
MAY 17, 2007
B
[B.P. SINGH, T ARUN CHATTERJEE AND
P.K. BALASUBRAMANYAN, JJ.]
Constitution of India, 1950:
c
Article 317-Reference-Member of Public Service CommissionMalpractices in respect of certain Examination-Arrest of the MeinberSubsequently released on bail-Suspended by President of India-On a
Reference to Supreme Court, HELD: Non-disclosure of her daughter being a
candidate in the Examination amounts to misconduct and thus the charge
answered in the affirmative-On another charge certain observations madeD Thus she did not behave in a manner befitting a member of a constitutional
,;,;a.
body like· the Public Service Commission.
The reference under Article 317 of the Constitution oflndia relates to
the conduct of the respondent, a member of the Maharashtra Public Service .
Commission and as to whether she is liable to be removed from office on the
;--
E ground of misbehaviour.
,-
Respondent joined the Maharashtra Public Service Commission as a
member on 8.5.2001. She was arrested on 8.6.2003 in a crime registered in
connection with a complaint lodged by the Public Service Commission relating
F
to mal-practices in respect of an examination conducted in the year 1999.
Twenty one others were also arrested. The respondent was lodged in jail The
Governor of Maharashtra requested the President of India to initiate action
i.
under Article 317 of the Constitution of India for her removal. He also
suspended her from office until an order had been passed by the President
under clause (1) of Article 317 of the Constitution. The respondent was
G subsequently released on bail.
Thus, the reference came to be made to this Court under Article 317(1)
of the Constitution of India.
The following were the charges framed by this Court based on the
"
I
H
116
...
I
1
SAY ALEE SANJEEV JOSHI, MEMBER. MAHARASHTRA PUBLIC SER VICE COMMISSION
117
suggestions of the Attorney General for India on examination of the relevant A
materials.
Charge-I
Whereas Ms. Sayalee Joshi has, directly or indirectly, tried to protect
the interests of 24 candidates who appeared in an examination B
conducted by the MPSC and has also attempted to influence an officer
of the Commission to do such illegal actions in the future in
conjunction with one Mr. Nitin Sathe.
Charge-2
Whereas the respondent no.3, Ms. Sayalee Joshi committed an act
of misbehaviour by interfering with an internal inquiry being
conducted by the Secretary of MPSC regarding alleged malpractices
in the examination for PSI/Asstt/STI conducted by the MPSC.
Charge-3
Whereas Ms. Joshi deliberately and in a ma/a fide manner omitted
to disclose a very vital fact to the Commission, namely that her
daughter was appearing for an examination being conducted by MPSC,
which disclosure was mandatory as per Office Order No.4/1998
dated 5.5.1998 of the MPSC and hence sought to suppress vital and
material information from the Commission, which affects her integrity
and complete devotion to duty in an impartial manner, amounting to
misbehaviour under Article 317(1) of the Constitution.
Charge-4
Whereas Ms. Joshi, in collusion with Mr. Nitin Sathe, attempted to
sabotage lodging of a complaint by a candidate as regards malpractices
in the examination conducted by the MPSC for the posts of PSl/Asstt/
STI and hence abused her official position and acted contrary to the
interest of the Commission and the candidates, and is guilty of
misbehaviour under Article 317(1) of the Constitution.
Answering the Reference, the Court
HELD: 1.1. There is evidence to show that on 25.4.2002, P. W.15 Sarode
visied the respondent at her flat. The visit is recorded in the visitors' book
c
D
G
kept at Nilambari, the building in which the Oat is situate. The respondent H
118
SUPREME COURT REPORTS
[2007) 7 S.C.R.
A has also admitted this visit. It is the charge that, at this meeting, Nitin Sathe,
a person who was involved in the 1996 examination scam and who was also
arrested in connection with the 1999 examination scam was also present The
presence of Nitin Sathe is sought to be proved by the evidence of P.W.15
Sarode, supported by his previous statement, Exhibit 53, the confession made
before P.W.14 and also by way of inference from the number of telephone calls
B the respondent had made to Nitin Sathe from her residential telephone, office
telephone and her mobile phone. The respondent has admitted that she had
contacted Nithin Sathe on a few occasions, but she has pretended ignorance
of the fact that Nitin Sathe was an accused in the 1996 examination scam of
M.P.S.C. and that the said facfwas carried by various newspapers. Though
C the respondent admitted that she read a newspaper regularly, she took the
stand that she did not remember having read.about Nithin Sathe and his
involvement in the 1996 scam. The number of phone calls made by her to Nitin
Sathe during the relevant time is sought to be justified by the respondent by
stating that Nitin Sathe was a land broker; that she and her mother jointly
purchased a plot in Pune, which she wanted to sell after the death of her
D mother and that she had contacted Nitin Sathe for the purpose of helping her
to sell that plot of land. According to her, nobody introduced Nitin Sa the to
her, but someone at the Talathi, to which she was regularly going after the
death of her mother for getting the land records changes, had told her about
Nitin Sathe and given her his phone number. She could not remember the
E person who suggested Nitin Sathe to her. The respondent is an educated person.
She had held a responsible position in the Indian Institute of Education from
where she had come to the Public Service Commission as a Member. It is
difficult to believe her story that she had no· occasion to very the antecedents
of Nitin Sa the before getting in touch with him for the purpose of the sale of
her plot of land; and that she had simply contacted him on the basis of some
F unknown at the Talathi telling her about him and giving her his telephone
number. [Para 46) [169-H; 170-A-B, C, D, E, F)
1.2. It is not possible to believe her story that she was not aware of the
antecedents of Nitin Sathe and that she was trying to get her plot of land sold
through him without even having met him once and even without having gone
G to his office at any time or even without giving him at least the copies of the
documents of title or sketch of the property to be sold. After all, in the normal
course, a person takes care to ensure that the person she seeks the help for
selling an item Of property is a reliable person and has a good record as a
broker before ertrusting such a person with the task of finding out a
H purchaser for his or her own property. It is difficult to imagine that the
j_
-
)
SAY ALEE SANJEEV JOSHI, MEMBER, MAHARASHTRA PUBLIC SERVICE COMMISSION
119
respondent did not act as a prudent person in this matter. She relied upon the ,A
evidence of P.W.5 to show that Nitin Sathe was an estate broker. P.W.5 has
stated in cross-examination that Nitin Sa the was an estate agent From that
alone one cannot infer that his activities were confined only to land broking.
The evidence indicates that he was involved in other activities, particularly
relating to the qualifying examination conducted by M.P.S.C. On the basis of '
the evidence read as a whole and in the circumstances, there is no hesitation
is discountenancing the version of the respondent that she was not aware of
the antecedents of Nitin Sathe and that she had never met him even though
she had entrusted him with the task of finding out a purchaser for her property
B
in Pune. The fact that she was also contacting dubious characters who were
subject to prosecution like Moolani (a large number of times) and Jadhav who C
was running a coaching institute for M.P.S.C. Examinations also suggests
that her innocent version about contacting Nitin Sathe cannot be accepted. It
is also difficult to imagine that as a woman of the world, who had held a
responsible position, she was not aware of the antecedents of Nitin Sa the and
his involvement in the 1996 examination scam especially after she had become
,
a member of the Commission in the year 2001.
D
(Para 46) (170-F, G; 171-A-D]
1.3. There is also the evidence of P.W.9 Aparna Dubey that she was
approached by Nitin Sathe who claimed that he was close to the respondent,
that he had threatened and coerced her to retract a complaint she had made
regarding the conduct of the 1999 examination and the threat had been held E
out to her and her friend by Nitin Sa the presumably at the instance of the
respondent The attempt in the cross-examination was to show that Aparna
Dubey was an unreliable person by suggesting that she had produced an
inaccurate creamy layer certificate which was also outdated and, that she had
also produced an experience certificate which was obtained from her father F
and it was a false one. Some attempt was also made to show the confusion
about the address at which she was residing. All the same, the fact remains
that Aparna Dubey originally made a complaint and then gave a second
statement to the Commission, in essence withdrawing her earlier complaint
which was one of the items that triggered as internal enquiry conducted by
the Secretary to the Commission, Seema Dhamdhere and a copy of the second G
representation with the seal of the Commission was found in the residential
premises of the respondent and it was recovered from her residence on a
search. [Para 47) [171-D, E, F, G]
1.4. There is also the evidence of P. W.10 Jyoti Desai that Nitin Sa the
had asked for money to get her selected in the examination and Nitin Sathe H
120
SUPREME COURT REPORTS
[2007) 7 S.C.R.
A had claimed that he had the necessary contacts in the Commission. She has
deposed that Nitin Sathe had approached her and told her that he could get
her selected in the interview and 'final selection if she paid Rs.1,00,000/- to
Rs.3,00,000/- as per the preference for the particular post He had told her
that he had necessary contacts and that if she did not believe him he would
B take her to the residence of respondent No.3 who was at that_ time staying in
Pune and who according to him looked after the money matters for the
interview and selection of candidates. He also told her that she could personally
talk to respondent No.3. Of course, it is the evidence of P. W.10 that she refused
the proposal since she refused to pay the amount demanded by Nitin Sathe on
"
behalf of the respondent. On reading about the scam in the newspaper she
C had approached the High Court with an application addressed to the Chief
Justice of the High Court, she had also approached the Anti-Corruption Bureau
where her statement was recorded. In her cross-examination, it had been
brought out that she had not secured the qualifying marks in the examination.
The difference in her address was emphasized and it was suggested that she
could not have met Nitin Sathe. She denied that she was in link with Aparna
D Dubey and one Kalpande and the Investigating Officer Poojari, P.W.17 in
trying to incriminate respondent No.3. (Para 48] (171-H; 172-A-D]
1.5. P.W.12 Ohwal, a Peon in the office of the Commission who was
promoted as a Naik was admittedly attached to the respondent as a Peon. He
E had accompanied her to Pune and to other centres where she held the
interview. H~ has given evidence that at the time of interviews of the 1999
examination when he was at the circuit house at Pune along with respondent
No.3, Nitin Sathe and one Kailash Jadhav used to come to the interview centre.
In the year 2002, he had received a call at the office of respondent No.3 from
Nitin Sathe who wanted to get in touch with the respondent and he had told
F Nitin Sathe that respondent No.3 was busy in the meeting. Nitin Sathe had
then told him to convey the information of his phone call to respondent No. 3.
In his cross-examination, it was brought out that he continued in his position
in the service of the Commission. He was attached to the establishment section.
His statement was recorded by ACP and his statement was recorded for the
G purpose of this reference. He re-asserted that he did receive a telephone call
·asking him to inform respondent No.3 that the caller had called. He could not
remember the date, day, time and the year but he was sure that such a
telephone call was received. (Para 49] (172-D-G]
1.6. P. W.17 was the investigating officer into the crime connected with
H the scandal. The different stages of the conspiracy were unfolded by him. He
...
<
SAY ALEE SANJEEV JOSHI, MEMBER. MAHARASHTRA PUBLIC SER VICE COMMISSION
121
admitted that originally, the respondent was shown as a witness in the charge A
-J
sheet and the supplemental charge sheets. However, later on, getting evidence
of the respondent having been a part of the conspiracy, she came to be arrested.
Sanction for prosecution had been accorded both by the Governor and by the
President. The respondent was arrayed as accused No.22. Her residential Oat
was searched prior to her arrest. The search had resulted in rerovery of B
confidential M.P.S.C. documents including certain papers relating to a
candidate Aparna Dubey. During the investigation, it was revealed that:
respondent No.3 was in regular contact with accused persons like Nitin Sathe,:
who had also been earlier arrested in connection with the crime relating toj
the 1996 scandal. It was also revealed that respondent No. 3 was in contact
with other accused persons like Kailash Pandurang Jadhav who was c
conducting classes at Barshi, Solapur for competitive examinations conducted
by the Commission. It was found that she had contacted Jadhav from her
telephone. Jadhav had been arrested in connection with the crime. It was also
found that the respondent was in regular contact with Mohd. Chand Moolan~
father of a candidate Riaz Moolani. Mohd. Chand Moolani was an accused in
the notorious Telgi Stamp Paper scam. The respondent was also in contact D
with the candidate Riaz Moolani. He also gave evidence about the confession
.>
made by Sarode P.W.15 and spoke about the confessional statement regarding
the involvement of respondent No.3 being corroborated by the entry made in
the visitors' book maintained at the residence of respondent No.3 at Nilambari ·
building. He also gave evidence that the telephone printout received from E
service providers had revealed that respondent No.3 had contacted Nitin Sathe
8 times between 28.3.2002 to 25.9.2002 from her office phone and 20 times
through her residential phone between 30.3.2002 to 20.5.2002. From her
mobile, she had contacted Nitin Sathe four times between 18.5.2002 to
27.5.2002. He also spoke about the recording of the statement of Jyoti Desai
F
and Apama Dubey. He had also recorded the statement of others like that of
Solunke P.W.8 ::r.J Ohwal P.W.12. In his cross-examination, it was brought
out that the respondent was originally shown as a witness and only later on
shown as an accused. It was suggested to him that he had not made a proper
enquiry with the driver and the maidservant of the respondent. It was brought
out that he had recorded the statements of more than 2000 candidates in G
respect of this crime. It was brought out that there were charges against him
on various counts, but he asserted that no substance was found in any of them.
Though originally, there were 22 charges proposed to this Court, only four
'i
charges had been framed ultimately. It was attempted to be suggested that his
evidence in this Court was motivated. He denied the suggestion that the
confession Exhibit 53 made by Sarode was inspired by him. He also denied H
122
SUPREME COURT REPORTS
(2007] 7 S.C.R.
A that the confessional statement was made by P.W.15 Sarode at his instance.
'I
The Panch witnesses proved the recovery and some of the papers from the
residence of the respondent and from her cabin in the Commission office.
(Para SO) (172-H; 173-A-H; 174-A]
B
1.7. It is clear that he respondent was being in constant touch with Nitin
Sethe over the telephone. That P.W.15 visited the respondent on 24.5.2002 is
admitted. This is also corroborated by the visitors' register kept at NilambarL
Obviously, what transpired in her flat is something that is known only to her
and P.W.15 Sarode and ifNitin Sathe was present there, also to Nitin Sathe.
~-
The evidence of Nitin Sa the is not before this Court but it is clear that he has
c been arrested in connection with the scam and he was also involved in the
previous scam of the year 1996. (Para 51) (174-C, D, E)
1.8. The respondent joined the Commission only on 8.S.2001 and even
before that, the conspiracy relating to permitting all students to take the final
D
examination had been enacted. The alleged role of the respondent started only
from the decision to rescan the answer-sheets on the pretext that the computer
had become corrupted and the subsequent attempt of replacing the answersheets. It is after narrating all these facts that P.W.15 has stated in his prior
statement that the respondent had called him to her residential flat and had
introduced Nitin Sathe to him and had told him that the list sponsored by Nitin
E Sathe containing 24 names were her own candidates and further that in future
he should work in conjunction with Nitin Sathe for the mutual benefit of all
concerned. Though it may be part of a different phase, the fact remains that
P.W.15 has also stated that he has been called to the office of the respondent
subsequently and had been told not to reveal the name ofNitin Sathe at the
F
internal enquiry that was c;>rdered by the Acting Chairman of the Commission
and that was being carried on by the Secretary Seema Dhamdhere. It is not
possible to accept the argument advanced on behalf of respondent No.3 that
the prior statement should be thrown out lock, stock and barrel for the
purpose of this enquiry. What this Court is concerned with is the appreciation
of the evidence of P. W.15 examined before this Court in the light of his crossG examination, the other evidence and in the light of his prior statement
contained in Exhibit 53. So viewed, it is really a question of believing or
disbelieving the evidence of P.W.15. This Court is not dealing with a
prosecution and in that context the alleged confession of a co-accused, but on
a fact finding enquiry based on the evidence before this Court and the
y
probabilities of the case. (Para 52) [174-F-H; 175-A-D]
H
SAY ALEE SANJEEV JOSHI, MEMBER, MAHARASHTRA PUBLIC SERVICE COMMISSION
123
1.9. P.W.15 is himself an accused in the case registered in connection A
with the scam and he is also a self confessed participant in the goings on in
the Commission. In that situation, it will be appropriate to look for some
corroboration of his version before entering a fh1.ding that the respondent
has, in fact, said that 24 persons mentioned by Nitin Sathe were her own
candidates and that P.W.15 should help them to qualify in the examination.
1
This part of the case is not supported by the papers allegedly recovered either B
from her flat or from her office. There is also no clear evidence of a list of 2~
persons. There is no adequate material to show that Nitin Sathe was in fact
pre.sent when PW 15 met the respondent at her flat on 24.5.2002. In this
situation the benefit of doubt must go to the respondent, especially, when the
enquiry is to find out whether she is guilty of misbehaviour within the meaning C
of Article 317 of the Constitution. So in the absence of any other evidence t~
corroborate the evidence of P.W.15 and his prior statement Ext. 53 this Court
is not inclined to find that charge No.1 is proved against the respondent.
[Para 53] (175-D, E, F]'
2.1. The second charge is essentially on the footing that the respondent D
did not disclose the information to the Secretary of the Commission, Seema'
Dhamdhare who was conducting the internal enquiry about he request of
Sorde not to make a criminal complaint and in that event, he was prepared to
I
resign from his post-and that the respondent influenced Aparna Dubey and
her friend to withdraw their complaint made to the Commission and to file a E
fresh complaint implicating Seema Dhamdhare in the racket The respondent1
did not disclose to the Commission that Sorde had made such an offer to her.
She spoke about this in her evidence. She also does not deny that she did not
inform the Chairman or the Commission as a body about the offer of Sarode. 1
But her case is that she informed Varma, another member, who was an exDirector General of Police. The Chairman of the Commission had requested 1 F
Varma to oversee the enquiry conducted by Seema Dhamdhare. According to
her, she thought that that was sufficient. There is nothing further to show
that Varma was conveyed this information by the respondent. Therefore, to•
that extent, the respondent had not cooperated with the enquiry. Apama Dubey
has given evidence that Nitin Sathe had threatened her and compelled her to 1 ,G
withdraw the first complaint made and to make a second complaint involving
Seema Dhamdhare who was making the internal enquiry. Aparna Dubel
further stated that according to Nitin Sathe, it was at the instane of respondent
No.3 that he had approached her to retract her original complaint. Nitin Sathe
had followed up this request with threats over the telephone. It is true that
1
other than the statement of Apama Dubey there is nothing to show that Nitin H
124
SUPREME COURT REPORTS
(2007] 7 S.C.R.
A Sa the claimed that he was acting at the behest of the respondent or that he
was acting on her behalf. Of course, her repeated contacting him over the
telephone, does create a suspicion, a suspicion, that Nitin Sathe might have
been acting on her behalf also. But, based on suspicion alone it would not be
appropriate to enter a finding on that aspect (Para 54J (175-G; 176-A-EJ
B
2.2. But the fact remains that at least a copy of the second complaint/
statement said to have been made by Aparna Dubey which she claimed to have
handed over to the respondent in person, was found in the possession of the
respondent. The evidence indicates that it was not a document that was
communicated to her by the Commission officially, and consequently, her
C custody or possession of that paper should be considered unauthorized. But
all said and done, the only fact that can be found as causing impediment in
the internal enquiry could be said to be her failure to disclose the statement
of PW 15 Sarode to the enquiry officer and the suggestion of a complaint
being got made against the investigating officer herself so as to impede the
internal enquiry. On these materials alone one would not like to enter a finding
D that the respondent had committed an act of misbehaviour by interfering with
the internal enquiry. [Para 54] (176-E, F, G]
3.1. It is admitted that the daughter of the respondent had applied from
two places for appearing in the examination conducted by the Commission in
the year 2002. It is the case of the respondent that her daughter had not, as
E a matter of fact, appeared in the examination. But the question is whether the
respondent had no obligation to inform the Commission that her daughter
was a participant in the examination conducted by the Commission in her
capacity as a Member of the Commission. The respondent did not deny that
she had not informed the Commission about the candidature of Poorva, her
F daughter. She also does not deny that there was a circular to the effect that
all employees and officers of the Commission should disclose if any of their
near relations were candidate in any examination conducted by the
Commission. Her stand is that since she was neither an employee nor an
officer, but was a niember of the Commission, the circular did not apply to
her and she had no legal obligation to inform the Commission of her daughter
G appearing in an examination conducted by the Commission.
(Para 55] [177-A, B, CJ
3.2. The respondent was holding the position of a member of a
constitutional body having a higher status. It is not possible to appreciate the
H stand of the respondent that even while the employees and officers of the
SA YALEE SANJEEV JOSHI, MEMBER, MAHAflASIITRA PUBLIC SERVICE COMMISSION
125
Commission had an obligation to inform the Commission about the appearance A
of their near relations in any examination conducted by the Commission, no
such obligation was attached to a member of the Commission. May be, a
member of the Commission would not qualify as an employee or as an officer
of the Commission, but that cannot absolve a member from the obligation of
disclosing to the .Commission that her daughter was to appear in the B
examination conducted by the Commission. Obviously, the object was to ensure
that she did not participate in that particular selection process lest charges
are raised of partiality in the process of selection. Normally, in such a situation
the member or members are to be kept out of the particular process. Since,
admittedly the daughter of the respondent had applied for appearing in the '
examination 2002 from two places and the respondent had failed to inform C
the Commission about the participation of her daughter in such an
examination, it has to be held that she has misconducted herself by not making
a disclosure to the Commission in that regard. The fact that the daughter
later on did not actually appear in the examination would make no difference.
(Para 56) (177-D, E, F, G) D
3.3. This charge has to be found against the respondent and it has also
to be held that her conduct is not informing the Commission about the making
of applications by her daughter for appearing in the examination 2002
conducted by the Public Service Commission amounts to misconduct.
(Para 57) (178-C, DJ E
4.1 Even while considering charge No.2, the evidence of Aparna Dubey
to th.e effect that she was made to withdraw her complaint by Nitin Satbe by
holding out threats to her and that she bad to file a second complaint by
handing over the same to the respondent implicating Serna Dbamdhare, the
Secretary to the Commission bas been referred to. An attempt was made to p
show that Aparna Dubey was not an honest person and that she and her friend
were acting in concert to defame the respondent. Aparna Dubey had produced
an incorrect experience certificate and she had not produced an accurate
creamy layer certificate and she was unreliable. Of course, there is not enough
evidence to show that Nitin Sa the had acted at the behest of the respondent
while he is alleged to have threatened Aparna Dubey and her friend to withdraw G '
their first complaint and compelling her to make a second complaint. But the
fact remains that one of the copies of the complaint was found in the residence
of the respondent when it was searched and according to the evidence the
respondent was not authorized to keep such a copy of the alleged complaint
since it had not been communicated to her officially. The explanation of the H
126
SUPREME COURT REPORTS
[2007] 7 S.C.R.
A respondent is that she had found a copy of the complaint lying on her desk in
her office and she had immediately affixed a seal on it and forwarded it. But
that part of the story is belied by the·fact that at least one copy was found in
her premises when the searc~ was made. (Para 58) [178-E-H; 179-A)
4.2. It is true that the respondent was in constant touch with Nitin Sathe.
B This Court has already discountenanced the story that she was contacting
Nitin Sathe only in connection with the sale of her plot in Pune. But even
then, it cannot be said that there is adequate evidence to show any collusion
with Nitin Sathe as reflected by this charge. Therefore, though some
suspicions are raised regarding the conduct of the respondent in this court
C in the light of her own evidence, it is not possible to say that the charge, as
such, has been made out so as to hold that this charge is proved against the
respondent. [Para 59) [179-A, B, C)
5. Based on the finding on charge No.3 and the observations on charge
No.2, this Court is of the view that the respondent has not behaved in a manner
D befitting a member of a constitutional body like the Public Service
Commission and under the circumstances, the reference made by Hon'ble the
Presidentoflndia to this Court is answered in the affirmative only as regards
charge No.3. (Para 60) (179-C, DJ
Speciai Reference No.1of1983, (1983) 3 SCR 639; Special Reference
E No. 1 of 1985 (1994) 2 SCR 37; Reference Case No. 1 of 1995, (1997) 3 SCC
216 and Special Reference No. 1of1997, (2000) 4 SCC 309, relied on.
F
ADVISORY JURISDICTION : Reference No. 1 of2004.
(Under Article 317 (1) of the Constitution of India)
A. Shariill, ASG, Amit Anand Tiwari Gaurav Aggarwal, P. Panneswaran
(for Attorney General for India) Ajit Kr. Sinha, D. Patil, Dinesh Tiwari G.R.
Pandey, Rakhi Suman, Ravindra K. Adsure, Makarand D. Adkar, Vijay Kumar,
S.D. Singh and Vishwajit Singh for the appearing parties.
G
The Report of the Court was delivered by
H
P.K. BALASUBRAMANY AN, J. I. This reference is made by the Hon'ble
President of India under Article 317 of the Constitution of India in relation
to the conduct of the respondent, a member of the Maharashtra Public Service
}
Commission. The question is whether respondent No. 3 is liable to be removed
7
i
SAY ALEE SANIEEV JOSHI, MEMBER. MAllARASHlllA PUBLIC SER VICE COMMISSION fBALASUBRAMANY AN, I.I 12 7
from office on the ground of misbehaviour.
A
2. The said respondent joined the Maharashtra Public Service ·
Commission as a member on 8.5.2001. She was a.-rested on 8.6.2003 in a crime ,
registered in connection with a complaint lodged by the Public Service
Commission relating to mat-practices in respect of an examination conducted, B
in the year 1999. Twenty one others were also arrested. The respondent was
lodged in jail. This led to His Excellency the Governor of Maharashtra to ·
request His Excellency the President of India to initiate action under Article
317 of the Constitution of India for her removal. He also suspended her from
office until an order had been passed by the President under clause (1) of
Article 317 of the Constitution. It is seen that the respondent was subsequently C
released on bail though at least on three earlier occasions, her prayers for bail ,
were rejected. Since a request was made to the President of India to act in
terms of Article 317(1) of the Constitution, the placing of the respondent '
under suspension under Article 317(2) of the Constitution was proper.
Considering the nature of the scam that emerged and the constitutional D
position enjoyed by the Public Service Commission, the reference to this
Court under Article 317(1) of the Constitution is seen to be the proper step
to be taken.
3. The Governor made the request to the President by letter dated
5.8.2003 to initiate action under Article 317 of the Constitution. His Excellency E
made the reference by Jetter dated 13.12.2003.
4. Article 317 of the Constitution reads as under:
"317. Removal and suspension of a member of a Public Service
Commission-(1) Subject to the provisions of clause (3), the Chairman F
or any other member of a Public Service Commission shall only be
removed from his office by order of the President on the ground of
misbehaviour after the Supreme Court, on reference being made to it
by the President, has, on enquiry held in accordance with the procedure
prescribed in that behalf under article 145, reported that the Chairman
or such other member, as the case may be, ought on any such ground G
to be removed.
(2) The President, in the case of the Union Commission or a Joint
Commission, and the Governor in the case of a State Commission, may
'
suspend from office the Chairman or any other member of the
H
128
A
B
c
SUPREME COURT REPORTS
(2007) 7 S.C.R.
Commission in respect of whom a reference has been made to the
Supreme Court under clause (I) until the President has passed orders
on receipt of the report of the Supreme Court on such reference.
(3) Notwithstanding anything in clause(!), the President may by order
remove from office the Chairman or any other member of a Public
Service Commission if the Chairman or such other members, as the
case may be,-
(a)
as adjudged an insolvent; or
(b) engages during his term of office in any paid employment outside
the duties of his office; or
(c)
is, in the opinion of the President.
(4) If the Chairman or any other member ofa Public ServiCe Commission
is or becomes in any way concerned or interested in any contract or
agreement made by or on behalf of the Government of India or the
D
Government of a State or participates in any way in the profit thereof
or in any benefit or emolument arising therefrom otherwise than as a
member and in common with the other members of an incorporated
company, he shall, for the purposes of clause (1), be deemed to be to
be guilty of misbehaviour."
E
5. The contours of enquiry when a reference is made by the President
of India under Article 317 ( 1) of the Constitution of India has been clearly
drawn by this Court in Special Reference No. I of 1983 (1983] 3 S.C.R. 639.
This Court therein has held that the President's prim a facie satisfaction based
on available materials was enough for making a reference to this Court under
F Article 317(1) of the Constitution of India and that there was no need for the
President to obtain the opinion of any fact finding body before making a
reference. The enquiry which this Court is required to hold is not into the
limited question whether, on the basis of facts found by the President, the
charge of misbehaviour is made out and whether the misbehaviour is of such
a nature as to warrant the removal of the person from his office. The inquiry
G contemplated by the Article is into the facts themselves so as to enable the
Court to pronounce upon the question whether the allegations made against
the member are proved. This Court also indicated the procedure that could
be conveniently followed when this Court is called upon to answer a reference
under Artide 317(1) of the Constitution of India.
H
,.
)
t
l
I ,
Ir
;
·'
I
1
SAY ALEE SANJEEV JOSHI, MEMBER, MAHARASll11!.A PUBLIC SER VICE COMMISSION (BALASUBRAMANY AN, J.( 129
6. In Special Reference No. 1of1985 [1994] 2 S.C.R. 37, a Constitution A
Bench adopted the procedure indicated in Special Reference No. I of 1983.
In Reference No. I of 1985 the guidelines to be followed by the Court in
recording evidence at the enquiry so as to enable this Court to answer the
reference are also set down.
7. The present reference was made by the President of India on 30.12.2003. B'
This court issued notices to the Attorney General for India, the Advocate
General for the State of Maharashtra, the Maharashtra Public Service
Commission and the concerned member. After the preliminary steps were
completed, on 13.12.2004, this Court requested the Attorney General for India
to scrutinize the materials and file a statement setting out the ground or C ,
grounds of misbehaviour along with the statement of facts forming the basis
thereof which is to be inquired into within the meaning of Article 317(1) of
the Constitution of India. On 2.3.2005, the learned Attorney General for India
filed a statement containing charges accompanied by the statement of facts,
list of witnesses and list of documents. On 1.4.2005, this Court directed the
Maharashtra State Government and the Maharashtra Public Service __p
Commission, to assist the learned Attorney General for India by making
available all the relevant documents accompanied by translations so that the
learned Attorney General for India can form an opinion on the question of
reframing or supplementing the charges. The Attorney General for India was
also to take into consideration the explanation furnished by the concerned E
member of the Public Service Commission. Originally, twenty two charges
were proposed. Initially they were reduced to six charges.
8. The learned Attorney General for India finally suggested that out of
the six charges proposed, charge Nos. 3 and 6 may be dropped since they
were not strictly within the purview of the reference made by the President F
since they related to conduct subsequent to the misbehaviour complained of.
The learned Attorney General for India suggested that charge Nos. 1, 2, 4 and
5 may be framed against the member. This Court heard the objecfams of the
concerned member and the Public Service Commission to the suggestion
made by the Attorney General for India and passed an order on 5.10.2005
directing that charge Nos. 1, 2, 4 and 5 contained in the note of the learned G
Attorney General for India be framed against the concerned member. On
25.10.2005, this Court adopted the procedure and the guidelines followed in
the two instances referred to above and directed the evidence to be taken by
a City Civil Court Judge of Bombay to be nominated by the Principal Judge,
Civil Court, Bombay. The chief examination of the witnesses was to be by way H
130
SUPREME COURT REPORTS
[2007] 7 S.C.R.
A of affidavits filed in this Court and the cross examination was to be done in
...
the presence of the nominated City Civil Court Judge to be recorded by him.
This Court directed that after recording the evidence,_ the concerned Judge
shall forthwith transmit the records to the Registrar General of this Court for
the matter being placed before the Bench. Pursuant to this, evidence was
B
taken and the records transmitted to this Court by the City Civil Court Judge.
During arguments, it was discovered that due to some confusion, the concerned
member against whom the charges are framed had not been examined. The
member also wanted her statement recorded. This Court therefore passed an
order on 17. l.2007 directing that the five affidavits filed by the. concerned
"'
member before this Court be treated as her evidence in chief-examination and
c she may be cross examined in the presence of a Registrar of this Court who
was subsequently named by order dated 22.1.2007. Pursuant thereto, the
I
~
concerned Registrar of this Court recorded the evidence of the respondent
r
and the matter again came up before this Court for consideration. The matter
was heard in detail with reference to the relevant materials on record.
D
9. The following are the charges framed by this Court based on the
suggestions of the learned Attorney General for India on examination of the
'\
relevant materials.
"Charge -1
E
Whereas Ms. Sayalee Joshi has, directly or indirectly, tried to
protect the interests of24 candidates who appeared in an examination
conducted by the MPSC and has also attempted to influence an
I
i
officer of the Commission to do such illegal actions in the future in
t
~
conjunction with one Mr. Nitin Sathe.
F
Charge - 2
Whereas the respondent No. 3, Ms. Sayalee Joshi committed an
act of misbehaviour by interfering with an internal inquiry being
conducted by the Secretary of MPSC regarding alleged malpractices
in the examination for PSI/ Asstt/STI conducted by the MPSC.
G
Charge - 3 (renumbered; original Charge N0.4 as suggested by the
Attorney General)
Whereas Ms. Joshi deli~erately and in a mala fide manner omitted
t
..
to disclose a very vital fact to the Commission, namely that her
H
daughter was appearing for an examination being conducted by MPSC,
SAY ALEE SANJEEV JOSHI, MEMBER. MAHARASHTRA PUBLIC SER VICE COMMISSION IBALASUBRAMANY AN, I. I 131
--;
. which disclosure was mandatory as per Office Order No. 4/1998 dated A
05.05.1998 of the MPSC and hence sought to suppress vital and
material information from the Commission, which affects her integrity
and complete devotion to duty in an impartial manner, amounting to
misbehaviour under Article 317( I) of the Constitution.
Charge - 4 (renumbered; original Charge NO.- 5 as suggested by the B
Attorney General)
J..___
-
Whereas Ms.