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Judgment located by a hyperlink.

Nirmala J. Jhala v. State of Gujarat (SC) : Law Finder Doc Id # 418744

2013(4) SCC 301 : 2013(2) S.C.T. 740 : 2013(3) MLJ 621 : 2013(2) Air Kar R 386 : 2013(6) JT 407 :
2013 AIR (SCW) 1800 : 2013(2) CLR 26 : 2013 AIR (Supreme Court) 1513 : 2013 LIC 2113 : 2013
(4) SLR 127 : 2013(5) SCR 195 : 2013(3) WBLR 13 : 2013(2) DNJ 299 : 2013(3) GLR 2308 : 2013
(138) FLR 227 : 2013(3) Cal. H.C.N. 167 : 2013(31) LCD 762 : 2013(2) GujLH 339 : 2013(4) SLT
40

SUPREME COURT OF INDIA

Before:- B.S. Chauhan and Fakkir Mohamed Ibrahim Kalifulla, JJ.

Civil Appeal No. 2668 of 2005. D/d. 18.3.2013.

Nirmala J. Jhala - Appellant

Versus

State of Gujarat and another - Respondents

For the Appellants :- Ms. Mahalakshmi Pavani, and M/s. Mahalakshmi Balaji and Co.,
Advocates.

For the Respondents :- Mrs. K. Enatoli Sema, Mr. Amit Kumar Singh and Ms. Hemantika
Wahi, Advocates.

A. Constitution of India, Articles 14 and 226 - Disciplinary proceedings - Departmental

enquiry - Standard of proof - Case law discussed - Held that the disciplinary
proceedings are not a criminal trial -The same are quasi-judicial and quasi-criminal -
Doctrine of proof beyond reasonable doubt, does not apply in such cases, but the
principle of preponderance of probabilities would apply - The court has to see whether
there is evidence on record to reach the conclusion that the delinquent had committed
a misconduct - However, the said conclusion should be reached on the basis of test of
what a prudent person would have done.

[Para 6]

B. Constitution of India, Articles 14 and 226 - Disciplinary proceedings - Judicial review

- Held that judicial review is not akin to adjudication on merit by re-appreciating the
evidence as an Appellate Authority - The only consideration the Court/Tribunal has in
its judicial review, is to consider whether the conclusion is based on evidence on
record and supports the finding or whether the conclusion is based on no evidence -
The adequacy or reliability of the evidence is not a matter which can be permitted to
be canvassed before the Court in writ proceedings.

[Para 6]

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C. Constitution of India, Articles 14 and 226 - Gujarat Civil Services (Discipline &
Appeal) Rules, 1971, Rule 6 - Disciplinary proceedings - Punishment - Compulsory
retirement - Judicial review - Charge of demand of 20,000/- by appellant for deciding
criminal case in favour of complainant-accused - High Court reached the conclusion by
shifting burden of proof of negative circumstances upon the appellant - Enquiry
Officer, the High Court on Administrative side as well as on Judicial side placed heavy
reliance on the statement made by Advocates and complainant in the preliminary
inquiry before the Vigilance Officer which was held behind the back of the appellant
and for which she had no opportunity to cross-examine either of them - There is
nothing on record to show that either the preliminary enquiry report or the statement
recorded therein had been exhibited in regular inquiry - In the absence of information
in the charge sheet that such report/statement would be relied upon against the
appellant, it was not permissible for the Enquiry Officer or the High Court to rely upon
the same - Order of punishment imposed by the High Court in compulsory retiring the
appellant liable to be set aside - Appellant has already reached the age of
superannuation - Appellant exonerated honourable of all the charges - Appeal allowed
with costs quantified to the tune of 5 lacs.

[Paras 17 to 30]

Cases Referred :-

Amlendu Ghosh v. District Traffic Superintendent, North-Eastern Railway, Katiyar, AIR 1960
Supreme Court 992.

Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, 2013(1) S.C.T. 800 : AIR 2013
Supreme Court 58.

Chiman Lal Shah v. Union of India AIR 1964 Supreme Court 1854.

Cholan Roadways Ltd. v. G. Thirugnanasambandam, 2005(1) S.C.T. 468 : AIR 2005 Supreme
Court 570.

D.K. Yadav v. JMA Industries Ltd., 1993(3) S.C.T 537 : (1993)3 SCC 259.

Dalpat Kumar v. Prahlad Singh, 1992(2) R.R.R. 457 : AIR 1993 Supreme Court 276.

Divisional Controller N.E.K.R.T.C. v. H. Amaresh, 2006(3) S.C.T. 582 : AIR 2006 Supreme Court
2730.

Government of Andhra Pradesh v. Mohd. Nasrullah Khan, 2006(1) S.C.T. 588 : AIR 2006
Supreme Court 1214.

Government of India, Ministry of Home Affairs v. Tarak Nath Ghosh, AIR 1971 Supreme
Court 823.

Haridas Das v. Smt. Usha Rani Banik, 2007(3) RCR (Criminal) 805 : 2007(4) Recent Apex
Judgments (R.A.J.) 207 : AIR 2007 Supreme Court 2688.

Harish Chandra Tiwari v. Baiju, 2002(1) S.C.T. 788 : AIR 2002 Supreme Court 548.

In Ishwar Chand Jain v. High Court of Punjab and Haryana, AIR 1988 Supreme Court 1395.

In Re : Ajay Kumar Pandey, 1998(4) RCR (Criminal) 501 : AIR 1998 Supreme Court 3299.

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K.P. Tiwari v. State of M.P., AIR 1994 Supreme Court 1031.

Krushnakant B. Parmar v. Union of India, 2012(2) S.C.T. 572 : (2012)3 SCC 178.

L.D. Jaikwal v. State of U.P., 1984(2) RCR (Criminal) 511 : AIR 1984 Supreme Court 1374.

M.S. Bindra v. Union of India, 1998(4) S.C.T. 325 : AIR 1998 Supreme Court 3058.

M.V. Bijlani v. Union of India, 2006(2) S.C.T. 454 : AIR 2006 Supreme Court 3475.

Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 Supreme Court 79.

Mohd. Yunus Khan v. State of U.P., 2010(4) S.C.T. 600 : (2010)10 SCC 539.

Municipal Committee, Bahadurgarh v. Krishnan Bihari, 1996(2) S.C.T. 508 : AIR 1996
Supreme Court 1249.

Narinder Mohan Arya v. United India Insurance Co. Ltd., 2006(2) S.C.T. 446 : AIR 2006
Supreme Court 1748.

Naryan Dattatraya Ramteerathakhar v. State of Maharashtra, AIR 1997 Supreme Court 2148.

Noor Aga v. State of Punjab, 2008(3) RCR (Criminal) 633 : 2008(4) Recent Apex Judgments
(R.A.J.) 381: AIR 2009 SC (Supp) 852.

Prahlad Saran Gupta v. Bar Council of India, 1997(3) S.C.T 40 : AIR 1997 Supreme Court 1338.

R.S. Saini v. State of Punjab, 1999(4) RCR (Civil) 253 : (1999)8 SCC 90.

Bombay through its Registrar v. Udaysingh, 1997(3) S.C.T. 273 : AIR 1997 Supreme Court
2286.

Roop Singh Negi v. Punjab National Bank, 2009(2) S.C.T. 82 : AIR 2008 SC (Supp) 921.

S.L. Kapoor v. Jagmohan, 1986(*) R.R.R. 341 : AIR 1981 Supreme Court 136.

State (Delhi Admn.) v. V.C.Shukla, AIR 1980 Supreme Court 1382

State of T.N. v. S. Subramaniam, 1996(2) S.C.T 191 : AIR 1996 Supreme Court 1232.

The Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M.T.
represented by the Binny Mills Labour Association, AIR 1960 Supreme Court 1352.

U.P. State Road Transport Corp. v. Suresh Chand Sharma, 2010(3) S.C.T. 197 : (2010) 6 SCC
555.

U.P.S.R.T.C. v. Vinod Kumar, 2008(1) S.C.T. 158 : 2007(6) Recent Apex Judgments (R.A.J.) 619 :
(2008)1 SCC 115.

Union of India v. Naman Singh Sekhawat, 2008(2) S.C.T. 729 : 2008(3) Recent Apex Judgments
(R.A.J.) 379 : (2008) 4 SCC 1.

Vijay Singh v. State of U.P., 2012(3) S.C.T. 390 : 2012(3) Recent Apex Judgments (R.A.J.) 455 :
AIR 2012 Supreme Court 2840.

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Yoginath D. Bagde v. State of Maharashtra, 1999(4) S.C.T. 403 : AIR 1999 Supreme Court 3734.

Zora Singh v. J.M. Tandon, AIR 1971 Supreme Court 1537.

JUDGMENT

B.S. Chauhan, J. - 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 appellant has been turned
down.

2. Facts and 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 (Senior Division) in 1992. She was posted as
Chief Judicial Magistrate (Rural) in Ahmedabad. In December 1991, she was trying one
Gautam Ghanshyam Jani in CBI Case No. 5 of 1991 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 20,000/- on
17.8.1993 as illegal gratification, to pass order in his favour, through one C.B. Gajjar,
Advocate. As it was not possible for the complainant to pay the said amount, the
appellant had agreed to accept the same in installments, and in order to facilitate the
said complainant's efforts to arrange the said amount in part, she had even granted
adjournment.

B. The said complaint filed with the CBI was referred to the High Court and in
pursuance thereof, a preliminary enquiry was conducted against the appellant in
which statements of various persons including C.B. Gajjar and G.G. Jani were
recorded. The Court then suspended the appellant vide order dated 21.1.1994, and
directed a regular enquiry appointing Shri M.C. Patel, Additional Civil Judge, City Civil
Court, Ahmedabad as the Enquiry Officer.

C. A charge-sheet 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 20,000/- from G.G. Jani through C.B. Gajjar, Advocate in lieu of favouring the
complainant/accused. Another relevant charge was that a person known as "Mama"
amongst the litigants, would come to her residence, accompany 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. 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 extent that one person named "Mama"
used to visit her quite frequently. However, it could not be proved that he had ever
misused his association with the appellant in any respect. All other charges were
found unsubstantiated.

E. In pursuance of the report submitted by the Enquiry Officer, 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, punishment of compulsory
retirement be imposed on her. The Government accepted the same and issued a

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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 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, vide impugned judgment and
order dated 25.8.2004.

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 406, 467 and 471
of Indian Penal Code, 1860. After investigation, a charge-sheet 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 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 adjournments one or two times, but later on, the appellant refused to accommodate
him. She hence, began examining witnesses even in the absence of the complainant's
advocate. The complainant was directed/instructed to keep his advocate present, and in the
event that Shri Pankaj Pancholi was not available, to make alternative arrangement. Shri
Pankaj Pancholi introduced the accused-complainant to Shri C.B. Gajjar, Advocate practicing
therein. Shri Pankaj Pancholi told Shri Gajjar that as the accused-complainant was his
relative, he was not in a position to ask the accused to pay fees. Thus, Shri Gajjar should ask
the accused-complainant to pay a sum of 20,000/- to be paid to the appellant, in order to get
a favourable order. The appellant did not meet Shri Gajjar in her chamber, nor did she put
up any demand. The complaint, however, was motivated as the appellant was a very strict
officer. This theory of demand/bribe and further, the readiness to accept the same in
installments, was a cooked up story. The findings 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 delinquency. Therefore, the appeal deserves to be allowed.

4. Per contra, Ms. Enatoli K. Sema, 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 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
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 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 counsel for the parties and
perused the record.

It may be pertinent to deal with the legal issues involved herein, before dealing with the

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case on merits.

6. LEGAL ISSUES:

I. Standard of proof in a Departmental Enquiry which is Quasi Criminal/Quasi Judicial in

nature :

A. In M. V. Bijlani v. Union of India and Ors., 2006(2) S.C.T. 454 : AIR 2006
Supreme Court 3475, this Court held :

"... Disciplinary proceedings, however, being quasi criminal in nature, there should be
some evidences to prove the 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 that there had been a preponderance of probability to prove the charges
on the basis of materials on record. While doing so, he cannot take into consideration
any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the
burden of proof. He cannot reject the relevant testimony of the witnesses only on the
basis of surmises and conjectures."

(Emphasis added)

(See also : Narinder Mohan Arya v. United India Insurance Co. Ltd. & Ors., 2006(2)
S.C.T. 446 : AIR 2006 Supreme Court 1748; Roop Singh Negi v. Punjab National Bank and
Ors., 2009(2) S.C.T. 82 : AIR 2008 SC (Supp) 921; and Krushnakant B. Parmar v. Union of
India & Anr., 2012(2) S.C.T. 572 : (2012) 3 SCC 178)

B. In Prahlad Saran Gupta v. Bar Council of India & Anr, 1997(3) S.C.T 40 : AIR
1997 Supreme Court 1338, this court observed that when the matter relates to a
charge of professional mis-conduct which is quasi-criminal in nature, it requires proof
beyond reasonable doubt. In that case the finding against the delinquent advocate
was that he retained a sum of 15,000/- without sufficient justification from 4-4-1978
till 2-5-1978 and he deposited the amount in the Court on the latter date, without
disbursing the same to his client. The said conduct was found by this Court as "not in
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, 2002(1) S.C.T. 788 : AIR 2002 Supreme Court
548, this 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 appellant
for mitigation of the quantum of punishment.

D. In Noor Aga v. State of Punjab & Anr., 2008(3) RCR (Criminal) 633 : 2008(4)
Recent Apex Judgments (R.A.J.) 381: AIR 2009 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
entitled to consider as to whether while inferring commission of misconduct on the
part of a delinquent officer relevant piece of 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

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of India & Ors. v. Naman Singh Sekhawat, 2008(2) S.C.T. 729 : 2008(3) Recent Apex
Judgments (R.A.J.) 379 : (2008) 4 SCC 1; and Vijay Singh v. State of U.P. & Ors., 2012
(3) S.C.T. 390 : 2012(3) Recent Apex Judgments (R.A.J.) 455 : AIR 2012 Supreme
Court 2840).

E. In M.S. Bindra v. Union of India & Ors., 1998(4) S.C.T. 325 : AIR 1998 Supreme
Court 3058, it was held :

"While evaluating the materials the authority should not altogether 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 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
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 regarding that possibility. Only
then there is justification to ram an officer with the label 'doubtful integrity'."

F. In High Court of Judicature at Bombay through its Registrar v. Udaysingh &

Ors., 1997(3) S.C.T. 273 : AIR 1997 Supreme Court 2286, this Court held :

"The doctrine of 'proof beyond doubt' has no application. Preponderance of

probabilities and some material on record would be necessary to reach a conclusion
whether or not the delinquent has committed misconduct."

G. In view of the above, the law on the issue can be summarised to the effect that the
disciplinary proceedings are not a criminal trial, and in spite of the fact that the same
are quasi-judicial and quasi-criminal, doctrine of proof beyond reasonable doubt,
does not apply in such cases, but the principle of preponderance of probabilities
would apply. The court has to see whether there is evidence on record to reach the
conclusion that the delinquent had committed a misconduct. However, the said
conclusion should be reached on the basis of test of what a prudent person would
have done. The ratio of the judgment in Prahlad Saran Gupta (supra) does not apply in
this case as the said case was of professional misconduct, and not of a delinquency by
the employee.

II. Duty of Higher Judiciary to protect subordinate judicial officers :

(a) In Ishwar Chand Jain v. High Court of Punjab and Haryana & Anr, AIR 1988
Supreme Court 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 judicial officer 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."

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(b) In Yoginath D. Bagde v. State of Maharashtra & Anr., 1999(4) S.C.T. 403 : AIR
1999 Supreme Court 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 are not expected to be
overawed by such litigants or fall to 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 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 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. (Vide : L.D. Jaikwal v.
State of U.P., 1984(2) RCR (Criminal) 511 : AIR 1984 Supreme Court 1374; K.P.
Tiwari v. State of Madhya Pradesh, AIR 1994 Supreme Court 1031; Haridas Das
v. Smt. Usha Rani Banik & Ors., etc., 2007(3) RCR (Criminal) 805 : 2007(4) Recent
Apex Judgments (R.A.J.) 207 : AIR 2007 Supreme Court 2688; and In Re : Ajay
Kumar Pandey, 1998(4) RCR (Criminal) 501 : AIR 1998 Supreme Court 3299).

(d) The subordinate judiciary works in the supervision of the High Court and it faces
problems at the hands of unscrupulous litigants and lawyers, and for them "Judge
bashing" becomes a favourable pastime. In case the High Court does not protect the
honest judicial officers, the survivor of the judicial system would itself be in danger.

III. Scope of Judicial Review :

(i) It is settled legal proposition that judicial review is not akin to adjudication on
merit by re-appreciating the evidence as an Appellate Authority. The only
consideration the Court/Tribunal has in its judicial review, is to consider whether the
conclusion is based on evidence on record and supports the finding or whether the
conclusion is based on no evidence. The adequacy or reliability of the evidence is not
a matter which can be permitted to be canvassed before the Court in writ
proceedings. (Vide: State of T.N. & Anr v. S. Subramaniam, 1996(2) S.C.T 191 : AIR
1996 Supreme Court 1232; R.S. Saini v. State of Punjab, 1999(4) RCR (Civil) 253 :
(1999) 8 SCC 90; and Government of Andhra Pradesh & Ors. v. Mohd. Nasrullah
Khan, 2006(1) S.C.T. 588 : AIR 2006 Supreme Court 1214).

(ii) In Zora Singh v. J.M. Tandon & Ors., AIR 1971 Supreme Court 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 turn 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 evidence
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

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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 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 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. 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 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
in the decision-making process, the Court must exercise its discretionary power with
great caution keeping in mind the larger public interest and only when it comes to the
conclusion that overwhelming public interest requires interference, the Court should
intervene.

IV. Punishment in corruption cases:

In Municipal Committee, Bahadurgarh v. Krishnan Bihari & Ors., 1996(2) S.C.T. 508 :
AIR 1996 Supreme Court 1249, this Court held as under:

"In a case of such nature - indeed, in cases involving corruption - there cannot be any
other punishment than dismissal. Any sympathy shown in such cases is totally
uncalled for and opposed to public interest. The amount misappropriated may be
small or large; it is the act of misappropriation that is relevant."

In Divisional Controller N.E.K.R.T.C. v. H. Amaresh, 2006(3) S.C.T. 582 : AIR 2006

Supreme Court 2730, this court held that the punishment should always be proportionate to
the gravity of the misconduct. However, in a case of corruption, the only punishment is
dismissal.

Similar view has been reiterated in U.P.S.R.T.C. v. Vinod Kumar, 2008(1) S.C.T. 158 : 2007
(6) Recent Apex Judgments (R.A.J.) 619 : (2008) 1 SCC 115; and U.P. State Road Transport
Corp. v. Suresh Chand Sharma, 2010(3) S.C.T. 197 : (2010) 6 SCC 555.

7. The case at hand is required to be considered in light of the aforesaid settled legal
propositions.

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 examination-in-chief has deposed that he had
been an employee of the Oriental Insurance Co. at Mehasana, and at the relevant time, was
facing a criminal case for mis-appropriation of money, and for producing up false

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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 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 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. Gajjar had told him not to worry as he was having very good
relations with the appellant, and he would be able to get adjournments. He sought
adjournment and the appellant fixed the case for 20.8.1993. Shri C.B. Gajjar 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 reaching there he had met Shri C.B. Gajjar, who had 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. Gajjar had then came out, after 15 minutes and told the complainant that appellant
had demanded 20,000/- to deliver the judgment in his favour. The complainant told him
that it was a very high amount and requested Shri C.B. Gajjar to 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 appellant in a slow voice. Shri C.B. Gajjar came out and told the complainant that
the amount was reasonable and he had to pay the same on 19.8.1993. The witness requested
Shri Gajjar to fix the payment in instalments. Thus, it was agreed to make payment of the
first instalment of 5,000/- on 20.8.1993. However, the arrangement of money could not be
made. The accused - complainant went to the office of the CBI on 19.8.1993 and filed a
complaint.

After receiving the complaint from the complainant, the CBI tried to collect some evidence in
the matter, and Shri C.B. Gajjar was invited to Yamuna Hotel, where the panchas and the CBI
people went alongwith the complainant. Shri C.B. Gajjar came there, however, he got some
doubt, therefore, he asked the complainant about the identification of the persons present
there and left the place immediately. The complainant also deposed about some threat given
to his wife at the behest of the appellant to withdraw the complaint.

In his cross-examination, the complainant admitted that there was a room adjacent to the
chamber of the appellant for the use of Stenographer, and also admitted that he did not hear
the conversation made between the appellant and Shri C.B. Gajjar, 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 say that in the case of C.B.I. 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 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."

10. Shri C.B. Gajjar, advocate, deposed that Shri P.K. Pancholi, advocate had told 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 20,000/-, as the
amount was to be given to the appellant as a bribe to get a favourable order. Thus, in view
thereof, he had told the complainant-accused that he had to pay 20,000/- to the appellant to
get a favourable order. In his cross-examination, he deposed as under:

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"I went to Miss Jhala's court on 13.8.1993 in morning in 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 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 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 30ft. and chamber admeasured 22ft. x 14ft., and adjacent thereto, there was a
chamber for Stenographer measuring 10ft. x 10ft. A person from outside could enter her
chamber only through the said stenographer's room. 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 on 13.8.1993 only and
sought adjournment. As the witness brought by CBI was present, she had given a short
adjournment, and fixed the matter for 20.8.1993. She had not discussed anything with Shri
Gajjar, advocate in her chamber for CBI case No. 5/1991, or any other case. There could be
no talk about the demand of money for this case or any other case. Shri C.B. Gajjar had come
only into the court. She had not seen Shri Gajjar on any other day, or on 17.8.1993. She had
never met him other than on that date in court either in chamber or any other place. She
was unmarried. She was not granting long adjournments in any case, and instead asking the
parties to keep their witnesses ready.

13. There was another witness examined by the department, namely, Jethagir, Inspector
working in the Income-Tax department in the Vigilance. He deposed that he had gone out at
the request of the department and met complainant- accused. He was introduced to the
complainant, and was taken to the court of the appellant on 20.8.1993, but the appellant did
not come to the court.

14. On the basis of the aforesaid evidence, the Enquiry 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 he repeated the allegations made in his complaint
dated 19.8.1993 to the CBI. He added that when Shri Gajjar 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.
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
5,000/-. Shri Jani then gave the following account of what happened in Yamuna
Restaurant on 28.8.1993.

However, the gravest and clinching circumstance against Miss Jhala is the fact that
Shri Gajjar called Shri Jani to meet him outside her chamber at 4.45 p.m. on 17.8.1993
and demanded 20,000/- after a meeting with her in her chamber no doubt both Miss
Jhala and Shri Gajjar had denied this allegation. 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 there was
no talk about any payment at that time. The meeting, therefore, took place after

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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 complaint dated 19.8.1993.

In the circumstances, the assertion of Miss Jhala and Shri Gajjar that there was no
meeting between them cannot be accepted as true.It may be that Shri Jani's claim to
have been standing near the chamber so as to be able to hear the 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 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 Gajjar in the Yamuna Hotel that the work would be done and there
would be no cheating. Both Shri Jani and Shri Gajjar said in their statements before
the Vigilance Officer that Shri Gajjar could accompany him to the residence of Miss
Jhala though she would not accept payment in person. According to Shri Jani, Shri
Gajjar said that the dealing is made by her husband. It is said that Miss Jhala is
unmarried and hence there was no question of her husband being present. But it is
possible that the payment was to be accepted by some other person when Shri Gajjar
loosely described as Miss Jhala's husband. .It may be that Shri Gajjar was to retain
part of the amount but there is no doubt that Miss Jhala agreed to accept illegal
gratification for doing in favour to Shri Jani and Shri Gajjar's demand was in
pursuance of the meeting with Miss Jhala in her chamber on 17.8.1993."

(Emphasis added)

And thus, he reached the conclusion as under:

"As a result of the above discussion, I come to the conclusion that Miss Jhala
demanded or agreed to accept illegal gratification through advocate Shri C.B. Gajjar
for doing favour to Shri Jani at her meeting with Shri Gajjar in her chamber on
17.8.1993. The charge No. 1 is answered accordingly."

15. The said report was accepted by the High Court and recommendation for imposing the
punishment of compulsory 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 Gajjar had a meeting outside 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 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, 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 Gajjar and Shri Jani had assembled outside
the chamber of the petitioner on 17.8.1993 and Shri Gajjar had entered the chamber of
the petitioner twice when the petitioner was in her chamber demanded an amount of
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....

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

......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 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 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 explain
Shri Gajjar entering her chamber on two occasions and spending considerable time
inside her chamber would, in our view, be extremely damaging. Shri Gajjar's entry in
her chamber on 17.8.1993 on two occasions would assume further significance in
view of the fact that Shri Jani's case was earlier fixed on 13.8.1993 and thereafter
adjourned to 20.8.1993 and that there was no other case of Shri Gajjar on the board
before the petitioner and that, therefore, Shri Gajjar had absolutely no occasion to
meet the petitioner twice inside her chamber on 17.8.1993.

(Emphasis added)

16. The Division Bench of the High Court accepted the finding arrived at by the Enquiry
Officer, though admitting that there were certain discrepancies in the evidence. The court
held as under :

"We have noted that the Enquiry Officer has not believed the say of Shri Jani when he
suggested that he could hear the conversation between the petitioner and Shri Gajjar
when he was standing outside the chamber of the petitioner on 17.8.1993. The
Enquiry Officer has also discarded the possibility of the petitioner having threatened
Shri Jani. 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 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 dates, called for the calendar
of the year 1993. The calendar of 1993 showed that August 28 was a 4th Saturday, and
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 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 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.

More so, the High Court has reached the conclusion by shifting the burden of proof of

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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 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 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 20,000/-
fully justified the findings of the Enquiry Officer. Again, the High Court shifted the onus to
prove a negative circumstance on the appellant.

18. The appellant had not married at that point of time, as per her statement. Even this fact
has been admitted by Shri C.B. Gajjar, Advocate. Given the above set of facts, the
complainant is seen talking about appellant's husband for collecting money on her behalf.
The High Court had failed to notice the above fact and had been making attempts to keep
aside all such relevant factors in a case, where there was no direct evidence.

19. In the aforesaid backdrop, we have to consider the most relevant issue involved in this
case. Admittedly, the Enquiry Officer, the High Court on Administrative side as well on
Judicial side, had placed a very heavy reliance on the statement made by Shri C.B. Gajjar,
Advocate, Mr. G.G. Jani, complainant and that of Shri P.K. Pancholi, Advocate, in the
preliminary inquiry before the Vigilance Officer. Therefore, the question does arise as to
whether it was permissible for either of them to take into consideration their statements
recorded in the preliminary inquiry, which had been held 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. District Traffic

Superintendent, North-Eastern Railway, Katiyar, AIR 1960 Supreme Court 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 the findings
recorded in preliminary inquiry, no order of punishment 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 Supreme Court 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 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 :

".....There must, therefore, be no confusion between the two inquiries and it is only
when the Government proceeds to hold 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)

(See also: Government of India, Ministry of Home Affairs & Ors. v. Tarak Nath Ghosh,

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AIR 1971 Supreme Court 823).

22. In Naryan Dattatraya Ramteerathakhar v. State of Maharashtra & Ors., AIR 1997
Supreme Court 2148, this Court dealt with the issue and held as under :

".....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 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)

23. In view of above, it is evident that the evidence recorded in preliminary inquiry cannot
be used in regular inquiry as the delinquent is not associated with it, and opportunity to
cross-examine the persons examined in such inquiry is not given. Using such evidence
would be violative of the principles of natural justice.

24. In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., 2013(1) S.C.T.
800 : AIR 2013 Supreme Court 58, this Court while placing reliance upon a large number of
earlier judgments held that cross-examination is an integral part of the principles of natural
justice, and a statement recorded behind back of a person wherein the delinquent had no
opportunity to cross-examine such persons, the same cannot be relied upon.

25. The preliminary enquiry may be useful only to take a prima facie view, as to whether
there can be some substance in the allegation made against an employee which may
warrant a regular enquiry.

26. "A prima facie case, does not mean a case proved to the hilt, but a case which can be said
to be established, if the evidence 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 led, it was possible to arrive at the conclusion in
question and not whether that was the only conclusion which could be arrived at on that
evidence". (Vide: Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 Supreme Court 79)

(See also: The Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B.
Dasappa, M.T. represented by the Binny Mills Labour Association, AIR 1960 Supreme
Court 1352; State (Delhi Admn.) v. V.C. Shukla & Anr., AIR 1980 Supreme Court 1382;
Dalpat Kumar & Anr. v. Prahlad Singh & Ors., 1992(2) R.R.R. 457 : AIR 1993 Supreme
Court 276; and Cholan Roadways Ltd. v. G. Thirugnanasambandam, 2005(1) S.C.T. 468 :
AIR 2005 Supreme Court 570).

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/complainant and Shri C.B. Gajjar, advocate. Shri
C.B. Gajjar in his statement has given the same version as he has deposed in regular enquiry.
Shri Gajjar 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 20,000/- as was agreed
with by Shri P.K. Pancholi, advocate. Of course, Shri C.B. Gajjar, complainant, has definitely
reiterated the stand he had taken in his complaint. The charge-sheet 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 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

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the list of documents. However, it did not say that so far as Charge No. 1 was concerned, the
preliminary enquiry report or the evidence collected therein, would be used/relied upon
against the appellant.

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 charge-
sheet that such report/statements would be relied upon against the appellant, it was not
permissible for the Enquiry Officer or the High Court to rely upon the same. Natural justice
is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to
the principle is required, whenever civil consequences follow up, as a result of the order
passed. Natural justice is a universal justice. In certain factual circumstances even non-
observance of the rule will itself result in prejudice. Thus, this principle is of supreme
importance. (Vide: S.L. Kapoor v. Jagmohan, 1986(*) R.R.R. 341 : AIR 1981 Supreme
Court 136; D.K. Yadav v. JMA Industries Ltd., 1993(3) S.C.T 537 : (1993)3 SCC 259; and
Mohd. Yunus Khan v. State of U.P. & Ors., 2010(4) S.C.T. 600 : (2010)10 SCC 539).

29. In view of the above, we reach the following inescapable conclusions :-

i) The High Court failed to appreciate that the appellant had not granted long
adjournments to the accused-complainant as the appellant wanted to conclude the
trial at the earliest. The case of accused-complainant which was taking its time, had
suddenly gathered pace, thus, he would have naturally felt aggrieved by failing to
notice it. The High Court erred in recording a finding that the complainant had no ill-
will or motive to make any allegation against 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. Gajjar, Advocate, recorded in a preliminary enquiry. The
preliminary 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 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 Gajjar, Advocate in her 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. Gajjar, Advocate on 17.8.1993, when
they 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.

vii) The complainant as well as Shri C.B. Gajjar, 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.

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viii) There is nothing on record to show that the appellant whose defence has been
disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished
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 appeal. The appeal succeeds
and is accordingly allowed. 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 relief, except to exonerate her
honourably of all the charges, and allow the appeal with costs, which is quantified to the
tune of 5 lacs. The State of Gujarat is directed to pay the said cost to the appellant within a
period of 3 months from today.

Appeal allowed.

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