# 5 S.C.R. 200 NIRMALA J. JHALA v. STATE OF GUJARAT & ANR

- **Citation:** [2013] 5 S.C.R. 200
- **Court:** Supreme Court of India
- **Decided:** 2013-03-18
- **Case number:** Civil Appeal No. 2668 of 2005
- **Bench:** Dr. B.S. Chauhan, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/5-s-c-r-200-nirmala-j-jhala-v-state-of-gujarat-anr-29076
- **Pages:** 33

## Headnote

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 of principles of natural justice- 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 of justice 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
F
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
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 Co

## Text

_Characters 0–39,894 of 69,390. This is a partial read: ask again with offset=39894 for what follows._

A
[2013) 5 S.C.R. 200
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 of principles of natural justice- 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 of justice 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
F
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
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
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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
0 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
E interference, the Court should intervene. [Para 6 Ill (iii)] [218G-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, NorthA
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 nonD 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 accusedcomplainant 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
G
appellant. [Para 29(i)] [231-E-F]
-~--
-
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-CG]
6.2. The High Court erred in shifting the onus of proving
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
office of the appellant for proving the entry of Advocate 'G'
in her chamber on 17.8.1993. [Paras 29 (iii) and (iv)]'[232-AB]
E
F
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
2006 (3) SCR 932
G
2008 (17) SCR 1476
2012 (3) SCR 484
1997 (2) SCR 499
2002 (1) SCR 83
H
2008 (10) SCR 379
relied on
relied on
Para 6-1 (A)
Para 6-1 (A)
relied on
Para 6-1 (A)
relied on
Para 6-1 (A) .
distinguished Para 6 B
referred to · Para 6
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
B
c
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.
Mahalakshmi Pavani, G. Balaji Mukesh Kumar Singh,
Mahalakshmi Balaji & Co. for the Appellant.
K. Enatoli Serna, Amit Kumar Singh, Hemantika Wahi for the
Respondents.
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.
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/
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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 accusedcomplainant was his relative, he was not in a position to ask the
accused to pay fees. Thus, Shri Gafiar should ask the accusedcomplainant 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
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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 2-51978 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.
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
G
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[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 quasijudicial 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.
D
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F
G
H
II.
(a)
Duty of Higher Judiciary to protect subordinate
judicial officers:
In lshwar Chand Jain v. High Court of Punjab and
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
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
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
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
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
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c
D
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[2013] 5 S.C.R.
can be permitted to be canvassed before the Court in writ
proceedings. (Vide: State of T.N. & Anr v. S. Subramaniam,
AIR 1996 SC 1232; R.S. Saini v. State of Punjab, (1999) 8
SCC 90; and Government of Andhra Pradesh & Ors. v. Mohd.
Nasrullah Khan, AIR 2006 SC 1214)
(ii) In Zora Singh v. J.M. Tandon & Ors., AIR 1971 SC 1537,
this Court while dealing with the issue of scope of 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
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
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
would not arise. If it is found that there was legal evideQce
before the Tribunal, even if some of it 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
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.
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
B
or procedural error, if any, resulting in manifest miscarriage of justice 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,
the Court should intervene;
IV.
Punishment in corruption cases:
In Municipal Committee, Bahadurgarh v.