http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 20  

PETITIONER: YOGINATH D.  BAGDE

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ANR.

DATE OF JUDGMENT:       16/09/1999

BENCH: S.Saghir Ahmad, K.Vankataswami

JUDGMENT:

     S.  SAGHIR AHMAD, J.

     The  appellant  has approached this Court against  the judgment and order dated 21.6.1996 passed by the Bombay High Court  which  had dismissed the Writ Petition by  which  the appellant   had  challenged  the   order   dated   8.11.1993 (20.11.1993)   dismissing  him  from   service   after   the disciplinary  proceedings  in  which it was found  that  the appellant was guilty of the charges framed against him.

     The  appellant  was  appointed  as  Civil  Judge,  Jr. Division,  on 18.2.1974 and was thereafter promoted as Civil Judge,  Senior  Division  in August, 1983.  He  was  further promoted  as Addl.  District & Sessions Judge in  September, 1987.

     In  June,  1990,  while the appellant  was  posted  at Amravati,  two  Sessions  Trials No.  28 of 1982 and  37  of 1987,  in  which  one Deepak Trimbakrao Deshmukh,  on  whose complaint  appellant was ultimately dismissed from  service, was  involved  as an accused.  Both the cases related  to  a murder  in which the appellant had refused long adjournments on the ground that the matters were old.  In July, 1990, the accused Deepak Trimbakrao Deshmukh filed a transfer petition before  the  Nagpur Bench of the Bombay High Court  for  the transfer  of  the  case from the appellant’s court  to  some other court on the ground that one Shri Patil, Advocate, who was opposed to Deepak Trimbakrao Deshmukh, was very close to the  appellant  and, therefore, Deepak  Trimbakrao  Deshmukh apprehended  that  he  would  not   get  justice  from   the appellant’s court.  This was registered as Transfer Petition No.   701  of  1990.  On 10th of August, 1990,  the  accused Deepak  Trimbakrao Deshmukh filed another Transfer  Petition (No.  812 of 1990) on the allegation that his Advocate (Shri Bapat)  had  assured  him  of his  acquittal  in  the  case, provided  he  would pay Rs.20,000/- to him as his  fee.   An interim  order  was  passed  in   this  case  by  which  the proceedings  in  the  Sessions Trial were stayed.   On  18th September,   1990,  however,   Deepak  Trimbakrao   Deshmukh withdrew both the Transfer Petitions.

     Thereafter,   Deepak   Trimbakrao   Deshmukh  made   a complaint  against  the  appellant to the High  Court  as  a result of which the appellant was placed under suspension by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 20  

order  dated  22nd  April, 1992 which was  served  upon  the appellant  on 27th April, 1992.  Thereafter, through  letter dated 22nd May, 1992, a chargesheet along with the statement of  imputations,  list of witnesses and list  of  documents, proposed  to  be  relied upon against  the  appellant,  were issued  to  the appellant.  The following two  charges  were mentioned in the chargesheet:-

     "1.   That  while you were working as  2nd  Additional Sessions  Judge,  Wardha, Sessions trial No.28/82 and  37/87 were  pending before you in which Deepak Trymbakrao Deshmukh was  an accused.  You had a meeting with said accused at the residence of Dr.  Naranje Rashtrabhasha Prachar Samiti Road, Wardha  on  23.11.90  when you assured him of  acquittal  on payment  of  Rs.10,000/- in each case and that  you  thereby indulged in corrupt practice amounting to gross misconduct.

     2.   That  on  18.12.1990 at about 8.00 P.M.   at  the residence  of  Dr.   Naranje, Rashtrabhasha  Prachar  Samiti Road,  Wardha,  you made a demand of Rs.10,000/-  from  Shri Deepak Trymbakrao Deshmukh, resident of Wardha, Taluka Arvi, District  Wardha,  as  consideration for  his  acquittal  in Sessions  Trial No.37/87 under Section 302 etc.  I.P.C.  and that  you thereby indulged in corrupt practice amounting  to gross misconduct."

     The  appellant  filed his reply on 18th June, 1992  in which  the  charges  were denied and it was  stated  by  the appellant  that Deepak Trimbakrao Deshmukh had made a  false complaint  against him so that his cases may not be tried by the appellant.  On a consideration of the reply submitted by the  appellant,  the  Disciplinary   Authority,  not   being satisfied  by  the  reply, decided to  hold  a  departmental enquiry  against the appellant and, therefore, by its  order dated  3rd  August,  1992 appointed Mr.  G.B.   Asma,  Joint District Judge, Akola, as the Enquiry Officer.

     After  completion  of  enquiry,  the  Enquiry  Officer submitted  his  report  dated  21st December,  1992  to  the Disciplinary  Authority.  It was held by the Enquiry Officer that  the charges against the appellant were not established and,  therefore,  he  recommended the reinstatement  of  the appellant.   The  Disciplinary Committee of the  High  Court considered the report of the Enquiry Officer and disagreeing with  the  findings  of the Enquiry Officer  held  that  the charges against the appellant were proved.  The Disciplinary Committee,  therefore,  tentatively  decided to  impose  the penalty  of  dismissal  from  service  upon  the  appellant. Accordingly,  the  appellant was called upon by a notice  to show cause why the proposed penalty be not imposed upon him. A copy of the reasons recorded by the Disciplinary Committee for  not agreeing with the findings submitted by the Enquiry Officer  as also a copy of the Enquiry Officer’s report were sent  to the appellant who filed his reply to the show-cause notice.   This  reply  was considered  by  the  Disciplinary Authority,  namely,  the High Court which decided to  impose the  major penalty of dismissal from service and accordingly recommended  to  the  Government  of  Maharashtra  that  the appellant  be  dismissed  from service.   Acting  upon  this recommendation,  the  Government  of Maharashtra,  by  order dated 08.11.1993, dismissed the appellant from service.

     The order of dismissal was challenged by the appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 20  

by  means of a Writ Petition, filed under Article 226 of the Constitution,  which was opposed by the High Court on  whose behalf   Nilkanth  Vishwanath   Dabholkar,  I/C,  Additional Registrar,  High  Cout,  (Legal) Appellate  Side,  filed  an affidavit  dated 07.06.1996 in opposition.  The High  Court, by the impugned judgment dated 21st of June, 1996, dismissed the  Writ Petition and it is in these circumstances that the present  appeal  has  been filed in this  Court  by  Special Leave.

     Learned  counsel appearing on behalf of the  appellant has  raised several contentions including that there was  no evidence  in  support of the charges that the appellant  had demanded  Rs.10,000/-  in  each of the two  Sessions  Trials pending  in  his  court  from the  accused,  namely,  Deepak Trimbakrao  Deshmukh, for his acquittal and that the Enquiry Officer  was  justified  in recording the finding  that  the charges  were  not established.  It was also contended  that the reasons on the basis of which the Disciplinary Committee of  the  High Court disagreed with the findings recorded  by the  Enquiry  Officer are wholly erroneous and  conjectural. It is contended that on the basis of the evidence on record, no  person could reasonably have come to the conclusion that the  payment  of  Rs.10,000/-, in each of the  two  Sessions Trials  to the appellant by Deepak Trimbakrao Deshmukh,  was established.  It is also contended that before recording its reasons  for  disagreeing with the findings of  the  Enquiry Officer  and  issuing  a  show-cause  notice  in  which  the punishment  of dismissal was proposed, the appellant  should have been given an opportunity of hearing and since this was not  done,  the principles of natural justice were  violated with  the  result  that  the decision  of  the  Disciplinary Committee  of the High Court stood vitiated and on the basis of  that decision, no recommendation could have been made to the  State  Government  for dismissing  the  appellant  from service  nor  could  the State Government,  acting  on  that recommendation,  legally  pass the order of dismissal.   The learned  counsel  also  contended that the decision  of  the Disciplinary Committee of the High Court was wholly contrary to   the  provisions  contained  in   Article  235  of   the Constitution  under  which the control and supervision  over the  subordinate officers of the subordinate judiciary vests in the High Court.  It is contended that though the decision to  hold  the disciplinary enquiry could have been taken  by the  Disciplinary Committee constituted by the High Court in pursuance of a Resolution of the Full Court, the decision to impose the punishment of dismissal could not have been taken by  that Committee as the jurisdiction in that regard vested in  the High Court which means the Full Court comprising  of all the sitting Judges and they alone could have deliberated upon  the  matter  and taken a decision whether or  not  the appellant was liable to be dismissed from service.

     It  is  contended  that since the Enquiry  Report  was considered   only  by  the   Disciplinary  Committee   which disagreed  with the findings of the Enquiry Officer and came to its own conclusion that the charges against the appellant were  established  and,  therefore,  he  was  liable  to  be dismissed  from  service  and  since  the  decision  of  the Government   was   based  on   the  recommendation  of   the Disciplinary  Committee,  the order of dismissal  ultimately passed by the State Government on that recommendation cannot be sustained.

     We  will  first  deal  with the  jurisdiction  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 20  

Disciplinary  Committee,  consituted by the High  Court,  to consider  the  report  of  the Enquiry Officer  and  take  a decision  to impose the punishment of dismissal from service upon the appellant.

     This  question has been disposed of by the High Court, before which it was raised, in the following words:-

     "Equally  there is no merit in the submission made  by the  Petitioner  that  the   decision  of  the  Disciplinary Committee  to impose major penalty of dismissal from service upon  the  Petitioner  on the charges levelled  against  the Petitioner being held proved was required to be rectified by the  Full  Court, i.e., all the Judges of this  Court.   The challenge  of the Petitioner on this ground is no longer res integra.   By  the judgment delivered on 23rd June, 1992  by the Division Bench of this Court in Writ Petition No.5847 of 1991  as also by the judgment delivered on 15th March,  1996 by  another  Division Bench of this Court in  Writ  Petition No.649  of 1996 (R.W.Khan v.  State of Maharashtra), similar challenge  as  made  in  the   present  petition  has   been negatived.   While  examining  the   question  whether   the decision  taken is that of the High Court or not in view  of Article 235 of the Constitution of India, the Division Bench found  that there is in the field Resolution dated 2nd  May, 1981  passed by the Full Court which lay down the manner and regulates  the  procedure  for administrative  decisions  on several subjects and matters enumerated therein.  Based upon this  Resolution of Full Court, the practice evolved in this court  is that from time to time a Disciplinary Committee is appointed  by  the Chief Justice which normally consists  of Senior  Judges and the decisions and recommendations made by such  Disciplinary Committee are considered as decisions and recommendations  of Full Court, i.e., all the Judges of this Court.   Accordingly, the decision taken by the Disciplinary Committee  of  this  Court to dismiss  the  Petitioner  from service  is  nothing  but  the decision of  the  High  Court itself.   Hence,  it  was not necessary to  place  the  said decision for approval or rectification before the meeting of all the Judges or Full Court."

     The above extract shows that the High Court was of the opinion  that if in a meeting of the Full Court a Resolution was  adopted  authorising the Chief Justice to constitute  a Disciplinary  Committee and the Committee was authorised  to take a decision with regard to the punishment which would be inflicted  upon  a  delinquent officer  of  the  subordinate judiciary,  the decision of that Committee would be  treated to be a decision of the Full Court and, therefore, there was no  need  to  circulate  the findings  of  the  Disciplinary Committee  to  all the Judges of the High Court or to  place the whole matter before the Full Court.

     We may consider the respective contentions on merits.

     Article 235 of the Constitution provides as under:

     "235.   Control over subordinate courts.- The  control over   district  courts  and   courts  subordinate   thereto including  the  posting and promotion of, and the  grant  of leave  to,  persons belonging to the judicial service  of  a State  and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 20  

article  shall  be  construed as taking away from  any  such person  any  right  of  appeal which he may  under  the  law regulating  the conditions of his service or as  authorising the High Court to deal with him otherwise than in accordance with  the  conditions of his service prescribed  under  such law."

     This  Article  contemplates control of the High  Court over  the  subordinate courts.  Read with Articles  233  and 234,  the word "control" used in Article 235 would  indicate that although the Appointing Authority of the District Judge and  officers other than District Judges is the Governor  of the  State,  the  words "control over  district  courts  and courts  subordinate  thereto",  which   are  words  of  wide connotation,  vest in the High Court other facets of service of  those officers, namely, their confirmation on completion of  the  period of probation, their postings, transfers  and disciplinary  matters  including  power to  recommend  major punishments.   Thus, the "control" vested in the High  Court is  complete  control  subject  only to the  powers  of  the Governor  in the matter of appointment, initial posting  and promotion  to  the posts of District Judges.   For  imposing major  punishment,  including the punishment  of  dismissal, removal  or  reduction  in  rank, the  High  Court  can,  in exercise   of   its  powers  under   Article  235   of   the Constitution,  hold  disciplinary proceedings and  recommend the  punishment  to  be  imposed on the  delinquent  to  the Governor  who  alone  would  be  competent  to  impose  such punishment  having regard to the provisions of Articles  233 and 234.

     A controversy had erupted at one time whether the word "High  Court" used in Article 235 would mean all the  Judges sitting  together  in  a  Full Court  meeting  or  merely  a Committee  of  Judges  appointed by the Chief  Justice;   in other  words,  whether the Full Court comprising of all  the sitting  Judges of the Court can act through a Committee  of Judges for purposes of recommending the major punishment.  A Full  Bench  of the Allahabad High Court in Batuk  Deo  Pati Tripathi  vs.  State of U.P.  & Ors.  (Civil Misc.  Writ No. 3561 decided on 18.4.1977) took the view that the word "High Court"  used  in  Article 235 meant the Full Court  and  not merely a Committee of Judges appointed by the Chief Justice. This  decision was reversed by a Constitution Bench of  this Court in State of Uttar Pradesh vs.  Batuk Deo Pati Tripathi & Anr.  (1978) 2 SCC 102.  This Court observed as under :

     "Having  given our close and anxious consideration  to that  question,  we regret that we are unable to  share  the view  of  the majority of the High Court Full Bench that  by leaving  the  decision of the question of  the  respondent’s compulsory  retirement to the Administrative Committee,  the Court  had abdicated its constitutional function.  According to  the  view  of  the majority, the act  of  the  Court  in allowing  the  Administrative  Committee   to  decide   that question under Rule 1 of Chapter III of 1952 Rules is an act of  "self-  abnegation" and therefore void.   This  approach betrays,  with respect, a misunderstanding of the object  of Article  235.   The ideal which inspired the provision  that the  control  over  District Courts and  courts  subordinate thereto shall vest in the High Courts is that those wings of the  judiciary  should  be  independent  of  the  executive. Tracing  the  history of that concept, Hidayatullah, J.   in State  of  West  Bengal  v.    Nripendra  Nath  Baghchi  has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 20  

highlighted  the  meaning  and purpose of  Article  235,  as construed  by this Court in various decisions, requires that all  matters relating to the subordinate judiciary including compulsory  retirement  and   disciplinary  proceedings  but excluding  the imposition of punishments falling within  the scope  of  Article  311  and   the  first  appointments  and promtions  should be dealt with and decided upon by the High Courts  in  the exercise of the control vested in  them.   A proper  understanding and appreciation of this position will be  conducive to a correct assessment of the situation under examination  in  the  instant case.  For, knowing  that  the object  of Article 235 is to ensure that independence of  an important  wing of the judiciary, the inquiry which  assumes relevance  is whether the procedure sanctified by the  Rules of  the High Court is in any manner calculated to  interfere with  or  undermine that indpendence.  Does  that  procedure involve "self-abnegation", by conceding the right of control to  any outside authority?  It is pertinent, while we are on this  question, to know the context in which the  expression "self-abnegation" was used by this Court.  In Shamsher Singh v.   State of Punjab (supra) the action of the High Court in asking  the  state  Government  to depute  the  Director  of Vigilance  to hold an inquiry against a judicial officer was deprecated  by this Court as an act of self-abnegation.  The High  Court  abdicated  its  control  over  the  subordinate judiciary,  which includes the power to hold a  disciplinary inquiry  against  a defaulting Judge, by  surrendering  that power  to  the  executive.   That,  truly,  was  an  act  of self-abnegation.  There is no parallel between what the High Court  did  in Shamsher Singh and what has been done in  the instant case.  Here, the decision to compulsorily retire the respondent was taken by the Judges of the High Court itself, though  not by all.  If some but not all Judges of the  High Court  participate in a decision relating to a matter  which falls  within the High Courts’ controlling jurisdiction over subrodinate courts, the High Court does not efface itself by surrendering its power to an extraneous authority.  The

     procedure adopted by the High Court under its Rules is not  subversive  of  the  independence  of  the  subordinate judiciary, which is what Article 235 recognises and seeks to achieve.  The true question then for decision is not the one by  which the majority of the Full Bench felt oppressed  but simply,  whether the procedure prescribed by the High  Court Rules  is in any other manner inconsistent with the terms of Article 235 of the Constitution."

     It  was  also argued in that case that since the  word "High  Court"  meant the entire body of Judges appointed  to the  Court, the control over the subordinate judiciary which was  vested  by  Article  235 in the High Court  had  to  be exercised  by  the  whole body of Judges and that  the  High Court  cannot delegate that power or functions to a Judge or a  smaller  body of Judges of the Court.  This argument  was rejected  by  the  Constitution Bench and it was  held  that there  was no delegation involved in the process adopted  by the  High  Court for appointing an Administrative  Committee under  the  Rules made by the High Court in exercise of  its power  under  Article 225 of the Constitution and  that  the Administrative Committee could recommend imposition of major penalty  which  could not be questioned on the  ground  that such  recommendation  was made not by the High Court but  by the  Committee  of  Judges to whom the power  could  not  be delegated.   It was further held that if a "power" was given to  the High Court by the Constitution, the manner in  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 20  

that  power  would be exercised, could also be laid down  by the High Court.

     The Constitution Bench decision still holds the field.

     In  another decision, namely, Registrar, High Court of Madras  vs.   R.Rajiah  AIR 1988 SC 1388, the  view  of  the Constitution  Bench  was  reiterated and it  was  held  that recommendation  for  compulsorily retiring a member  of  the subordinate judicial service comes within the purview of the power  of control of the High Court under Article 235 of the Constitution.   In  this connection, the Court  also  relied upon  the decisions of this Court in High Court of Punjab  & Haryana  vs.   State of Haryana (1975) 3 SCR 365;   Shamsher Singh  vs.   State  of Punjab (1975) 1 SCR  814;   State  of Haryana  vs.   Inder  Prakash Anand AIR 1976 SC  1841;   and B.Mishra  vs.   Orissa  High Court (1976) 3  SCC  327.   The Court,  however,  while considering the facts of  the  case, observed as under :

     "22.   In Rajiah’s case, a Review Committee consisting of  the  three judges was appointed by a resolution  of  the High  Court.  In the meeting of the Review Committee held on June 25, 1979 to consider the case of the respondent Rajiah, only  two  Judges of the High Court were present.   The  two Judges  came  to the conclusion that the respondent,  Rajiah should  be  compulsorily retired with effect from  April  2, 1980.   The Division Bench found that the third Judge had no notice  of the meeting held on June 25, 1979, but he  agreed with  the  view  expressed by the two Judges with  a  slight modification  that  the respondent would retire with  effect from  March  3,  1980 under rule 56(d)  of  the  Fundamental Rules.   The Division Bench of the High Court took the  view that  as  all  the  three Judges had not  sat  together  and considered   the  question  of   compulsory  retirement   of respondent  Rajiah, and that further, the third Judge having also  modified the decision of the two Judges, namely,  that the  respondent  would be compulsorily retired  with  effect from  March  3,  1980,  the  impugned  order  of  compulsory retirement  of  the respondent Rajiah was vitiated.   It  is true  that  the members of the Review Committee  should  sit together and consider the question of compulsory retirement, but  simply  because one of them did not participate in  the meeting  and subsequently agreed with the view expressed  by the  other two Judges, it would not vitiate the decision  of the  Committee  to compulsorily retire the respondent.   The third  Judge might be justified in correcting the date  with effect  from which the respondent would compulsorily retire, but  that  is  a  very minor issue and  would  not,  in  our opinion, make the decision invalid.

     23.   In  regard to the case of the other  respondent, namely,  K.   Rajeswaran, the High Court took the view  that the  constitution  of  the  Review Committee  by  the  Chief Justice  and  not  by the Full Court was  illegal.   We  are unable  to  accept the view of the High Court.  We  fail  to understand  why  the Chief Justice cannot appoint  a  Review Committee  or  an  Administrative  Committee.   But  in  one respect  the High Court is, in our opinion, correct, namely, that  the decision of the Review Committee should have  been placed  before a meeting of the Judges.  In the case of  the respondent,  Rajeswaran, the decision and recommendation  of the  Review  Committee was not placed before the Full  Court meeting.   Nor  is there any material to show that the  same was   circulated  to  the  Judges.    In  that  sense,   the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 20  

recommendation  of  the  Review Committee was  not  strictly legal."

     ( Emphasis supplied )

     Relying  upon  the extracts underlined above,  learned counsel  for  the  appellant  contended that  since  in  the instant  case  the  matter  was not circulated  to  all  the individual  Judges  of the High Court nor was their  opinion sought whether the appellant was liable to be dismissed from service,  the  recommendation of the High Court as also  the ultimate order of the Governor of Maharashtra are bad in law and  are  liable  to be quashed.   This  contention,  though apparently  supported  by the observations of this Court  in Rajiah’s  cases  (supra), cannot be accpeted as in a  latter decision  in  High  Court  of   Judicature  at  Bombay   vs. Shirishkumar  Rangarao  Patil  & Anr.  (1997) 6 SCC  339,  a similar plea was rejected as it was found on a consideration of various resolutions adopted by the Bombay High Court that the Full Court having itself authorised the Chief Justice to constitute  a Committee of Judges for disciplinary  matters, whatever  decision was taken by the Committee was treated to be  a decision of the Full Court.  This Court in  paragraphs 10 and 11 of the report observed as under :

     "10.  It would thus be settled law that the control of the subordinate judiciary under Article 235 is vested in the High  Court.  After the appointment of the judicial officers by  the Governor, the power to transfer, maintain discipline and  keep  control over them vests in the High  Court.   The Chief Justice of the High Court is first among the Judges of the  High Court.  The action taken is by the High Court  and not  by the Chief Justice in his individual capacity, nor by the  Committee of Judges.  For the convenient transaction of administrative  business in the Court, the Full Court of the Judges  of  the  High Court generally  passes  a  resolution authorising   the  Chief  Justice   to  constitute   various committees including the committee to deal with disciplinary matters  pertaining  to  the subordinate  judiciary  or  the ministerial  staff working therein.  Article 235, therefore, relates  to the power of taking a decision by the High Court against  a  member  of the subordinate  judiciary.   Such  a decision  either  to hold an enquiry into the conduct  of  a judicial  officer,  subordinate or higher judiciary,  or  to have  the enquiry conducted through a District or Additional District  Judge  etc.   and to consider the  report  of  the enquiry  officer  and to take follow-up action and  to  make appropriate  recommendation to the Disciplinary Committee or to  the  Governor, is entirely of the High Court which  acts through  the Committee of the Judges authorised by the  Full Court.  Once a resolution is passed by the Full Court of the High  Court,  there  is no further necessity  to  refer  the matter  again to the Full Court while taking such procedural steps relating to control of the subordinate judiciary.

     11.   It  is true that a resolution came to be  passed authorising  the  Committee  of  five Judges  to  deal  with imposition   of  punishment  on   judicial  officers.    The question,  therefore,  is  whether  it  requires  the  Chief Justice   and  the  Committee   to   initiate   disciplinary proceedings.   The  "delegation of the function of the  High Court  in respect of punishment of judicial officers" is  an exception of width and of wide amplitude to cover within its ambit the power to take a decision by the Committee from the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 20  

stage   of  initiation  of   disciplinary   procedings,   if necessary, till its logical end, viz.  recommendation to the Government  to  impose a penalty proposed by the  Committee. The  recommendation  is by the High Court,  the  controlling authority under Article 235 of the Constitution.  Therefore, it  is difficult to accept the contention of Shri Batra that the  delegation  is  only for imposition  of  punishment  on judicial  officers.  In fact, the High Court has no power to impose  any punishment by itself.  The appointing authority, viz.,  the  Governor  is the competent authority  under  the Constitution  to  impose punishment in accordance  with  the rules  framed for the purpose.  Therefore, the entire  gamut of  procedural  steps of disciplinary action is by the  High Court  which  is  the   controlling  authority  through  the Committee constituted in that behalf by the Chief Justice of the High Court."

     The  case  before  us  is  also  that  of  an  officer belonging to the subordinate judicial service of Maharashtra under  the  control  of  the  Bombay  High  Court,  and  is, therefore, squarely covered by the above decisions.  We need not  look  into this question any further.   We,  therefore, hold  that the recommendation to dismiss the appellant  made by  the Bombay High Court to the Governor would not be  open to challenge on the ground that such recommendation was made by  the  Disciplinary  Committee and not by the  Full  Court comprising of all the sitting Judges.

     Before leaving this question, we may, however, observe that constitution of a small committee of few senior Judges, as,   for  example,  in  the   instant  case  in  which  the Disciplinary  Committee consists of five seniormost  Judges, excludes permanently other Judges.  This exclusion militates against  the  concept  of   "wider  consultation"  which  is inherent  in  the words "High Court".  Many of  the  Judges, specially  those elevated from judicial service who  usually have  a  short  tenure,   would  superannuate  without  even reaching  the "Collegium" of five seniormost Judges.   Bound as  we  are  by the decision of the Constitution  Bench,  we leave  the  matter  here as it is with the  hope  that  this Judge-made law would be reconsidered one day and if found to be  retrograde  and  against the developing  concepts  would undergo  an  evolutionary  change or the Bombay  High  Court itself,  we may suggest, without intending to encroach  upon the  exclusive Constitutional rights of the Chief Justice to run the High Court, would adopt a new Resolution which would permit   other   Judges   also   to   participate   in   the decision-making process concerning, at least, the imposition of  major penalties like dismissal or removal, on members of the  subordinate  judiciary,  as these  punishments  finally close their service chapter.

     It  was  next  contended by learned  counsel  for  the appellant  that  the  Disciplinary   Committee,  which   had disagreed  with the findings recorded by the Enquiry Officer and  had  held that the charges against the  appellant  were proved, had acted in violation of the ‘principles of natural justice’  inasmuch  as  it did not give  an  opportunity  of hearing  at the stage when it developed the inclination that the  findings  recorded  by  the Enquiry  Officer  were  not acceptable  and were liable to be reversed.  It was  further contended  that  the findings of the Enquiry Officer,  which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 20  

were  based  essentially on an appreciation of the  evidence recorded   by  him  were   considered  by  the  Disciplinary Committee in the absence of the appellant without any notice to  him and the Disciplinary Authority on a re-appraisal  of the evidence came to the conclusion that the charges against the  appellant were established.  The Disciplinary Committee thus  having taken a decision, proceeded thereafter to issue a notice to the appellant to show cause why he should not be dismissed  from service and a recommendation to that  effect be  not  made to the Governor.  It was also  contended  that Disciplinary  Committee had already made up its mind and  it was only in respect of the proposed punishment that a notice was  issued to the appellant.  Consequently, the  appellant, it  is  contended,  was denied an  adequate  opportunity  of hearing which should have been afforded to him before taking a  decision  that  he  was guilty of  the  charges  levelled against him.

     Before  entering into the merits of this question,  we may  point  out  that the action against the  appellant  was taken  under  the provisions of Maharashtra  Civil  Services (Discipline  &  Appeal Rules), 1979.  Part III of the  Rules deals   with  "penalties   and  disciplinary   authorities". Penalties  are mentioned in Rule 5.  Dismissal from  service is  one  of the major penalties mentioned in Rule  5(1)(ix). The  Disciplinary Authorities are indicated in Rule 6.   The Authority  which  can institute disciplinary proceedings  is indicated in Rule 7.

     Part IV of the Rules deals with procedure for imposing penalties.   Rule  8 prescribes the procedure  for  imposing major  penalties.  The Inquiring Authority, after completing the  inquiry, is required to prepare a report as provided by Clause 25 of Rule 8 which provides as under :

     "(25)  After  the conclusion of the inquiry, a  report shall  be prepared by the inquiring authority.  Such  report shall contain ---

     (a)  the  articles of the charge and the statement  of the imputation of misconduct or misbehaviour;

     (b)  the defence of the Government servant in  respect of each article of charge;

     (c)  an assessment of the evidence in respect of  each article of charge;

     (d)  the  findings on each article of charge  and  the reasons therefor;

     (e)   recommendation   regarding    the   quantum   of punishment."

     The  Inquiring  Authority  is thereafter  required  to forward  the  report  as also all  other  relevant  records, including  the  report prepared by it under  sub-rule  (25); the  written statement of defence, if any, submitted by  the Government  servant;   the  oral  and  documentary  evidence produced  in the course of the inquiry;  written briefs,  if any,  filed  by  the Presenting Officer  or  the  Government servant  or  both during the course of the inquiry  and  the orders,  if any, made by the Disciplinary Authority and  the Inquiring  Authority  in  regard  to  the  inquiry,  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 20  

Disciplinary Authority.

     What  action would be taken on this report and in what manner  will this report be dealt with is indicated in  Rule 9.  Relevant portions of this Rule are quoted below :

     "9.   Action  on  the  inquiry   report  --  (1)   The disciplinary  authority,  if it is not itself the  inquiring authority  may, for reasons to be recorded by it in writing, remit  the  case  to  the inquiring  authority  for  further inquiry  and  report,  and  the  inquiring  authority  shall thereupon  proceed to hold the further inquiry according  to the provisions of rule 8 of these rules as far as may be.

     (2)  The disciplinary authority shall if it is not the inquiring  authority, consider the record of the inquiry and record  its  findings on each charge.  If it disagrees  with the  findings  of the inquiring authority on any article  of charge, it shall record its reasons for such disagreement.

     (3) ................................

     (4)  (i) If the disciplinary authority, having  regard to  its findings on all or any of the articles of charge, is of  the  opinion that any of the major penalties  should  be imposed on the Government servant, it shall--

     (a)  furnish to the Government servant, a copy of  the report  of  the inquiry held by it and its findings on  each article of charge, or, where the inquiry has been held by an inquiring authority appointed by it, a copy of the report of such  authority  and  a statement of its  findings  on  each article of charge expressly stating whether or not it agrees with  the  findings of the inquiry authority, together  with brief  reasons  for  its  disagreement,  if  any,  with  the findings of the inquiring authority;  and

     (b)  give  to the Government servant a notice  stating the  penalty proposed to be imposed on him and calling  upon him  to submit within fifteen days of receipt of the  notice or  such further time not exceeding fifteen days, as may  be allowed,  such representation as he may wish to make on  the proposed penalty on the basis of the evidence adduced during the inquiry held under rule 8 of these rules.

     (ii)   (a)    .................................    (b) .................................

     (iii)  Where  it  is  not  necessary  to  consult  the Commission,  the  disciplinary authority shall consider  the representation,  if  any, made by the Government servant  in pursuance  of the notice given to him under clause (i)(b) of this  sub-rule and determine what penalty, if any, should be imposed  on him on the basis of the evidence adduced  during the  inquiry held under rule 8 and make such order as it may deem fit."

     In  view of the provisions contained in the  statutory Rule  extracted  above,  it  is  open  to  the  Disciplinary Authority  either to agree with the findings recorded by the Inquiring  Authority or disagree with those findings.  If it does not agree with the findings of the Inquiring Authority, it  may  record  its  own  findings.   Where  the  Inquiring Authority  has  found the delinquent officer guilty  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 20  

charges  framed  against him and the Disciplinary  Authority agrees with those findings, there would arise no difficulty. So  also,  if the Inquiring Authority has held  the  charges proved, but the Disciplinary Authority disagrees and records a finding that the charges were not established, there would arise  no difficulty.  Difficulties have arisen in all those cases  in  which  the  Inquiring Authority  has  recorded  a positive  finding that the charges were not established  and the delinquent officer was recommended to be exonerated, but the Disciplinary Authority disagreed with those findings and recorded  its own findings that the charges were established and  the delinquent officer was liable to be punished.  This difficulty  relates to the question of giving an opportunity of hearing to the delinquent officer at that stage.  Such an opportunity may either be provided specifically by the Rules made   under  Article  309  of   the  Constitution  or   the Disciplinary  Authority  may,  of its own, provide  such  an opportunity.   Where the Rules are in this regard silent and the Disciplinary Authority also does not give an opportunity of  hearing to the delinquent officer and records  findings, different  from  those of the Inquiring Authority  that  the charges  were  established, "an opportunity of hearing"  may have  to  be read into the Rule by which the  procedure  for dealing  with  the Inquiring Authority’s report is  provided principally  because it would be contrary to the  principles of  natural justice if a delinquent officer, who has already been  held to be ‘not guilty’ by the Inquiring Authority, is found  ‘guilty’  without  being afforded an  opportunity  of hearing  on  the basis of the same evidence and material  on which a finding of "not guilty" has already been recorded.

     We have already extracted Rule 9(2) of the Maharashtra Civil  Services  (Discipline  & Appeal)  Rules,  1979  which enables  the  Disciplinary  Authority to disagree  with  the findings  of  the  Inquiring  Authority on  any  article  of charge.   The  only requirement is that it shall record  its reasoning   for  such  disagreement.    The  Rule  does  not specifically provide that before recording its own findings, the  Disciplinary  Authority  will give  an  opportunity  of hearing  to  a delinquent officer.  But the  requirement  of "hearing"  in  consonance  with the  principles  of  natural justice even at that stage has to be read into Rule 9(2) and it has to be held that before Disciplinary Authority finally disagrees  with the findings of the Inquiring Authority,  it would  give  an  opportunity of hearing  to  the  delinquent officer so that he may have the opportunity to indicate that the  findings  recorded  by the Inquiring Authority  do  not suffer from any error and that there was no occasion to take a  different view.  The Disciplinary Authority, at the  same time,  has  to  communicate to the  delinquent  officer  the "TENTATIVE" reasons for disagreeing with the findings of the Inquiring  Authority  so  that the  delinquent  officer  may further  indicate that the reasons on the basis of which the Disciplinary  Authority  proposes  to   disagree  with   the findings recorded by the Inquiring Authority are not germane and  the  finding  of "not guilty" already recorded  by  the Inquiring Authority was not liable to be interfered with.

     Recently,  a three-Judge Bench of this Court in Punjab National  Bank & Ors.  vs.  Kunj Behari Mishra (1998) 7  SCC 84 = AIR 1998 SC 2713, relying upon the earlier decisions of this  Court in State of Assam vs.  Bimal Kumar Pandit (1964) 2  SCR  1  =  AIR  1963 SC  1612;   Institute  of  Chartered Acountants  of  India vs.  L.K.  Ratna & Ors.  (1986) 4  SCC 537  as  also  the Constitution Bench decision  in  Managing

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 20  

Director,  ECIL, Hyderabad & Ors.  vs.  B.  Karunakar & Ors. (1993)  4 SCC 727 and the decision in Ram Kishan vs.   Union of India (1995) 6 SCC 157, has held that :

     "It  will not stand to reason that when the finding in favour  of  the  delinquent  officers   is  proposed  to  be overturned by the disciplinary authority then no opportunity should  be  granted.  The first stage of the enquiry is  not completed  till the disciplinary authority has recorded  its findings.   The  principles of natural justice would  demand that  the  authority  which proposes to decide  against  the delinquent  officer  must  give  him a  hearing.   When  the enquiring  officer holds the charges to be proved, then that report  has  to be given to the delinquent officer  who  can make  a  representation  before the  disciplinary  authority takes  further  action  which  may  be  prejudicial  to  the delinquent  officer.   When, like in the present  case,  the enquiry  report  is in favour of the delinquent officer  but the  disciplinary  authority  proposes to differ  with  such conclusions,  then that authority which is deciding  against the delinquent officer must give him an opportunity of being heard  for  otherwise  he would be  condemned  unheard.   In departmental  proceedings, what is of ultimate importance is the finding of the disciplinary authority."

     The Court further observed as under :

     "When the enquiry is conducted by the enquiry officer, his  report is not final or conclusive and the  disciplinary proceedings  do  not  stand   concluded.   The  disciplinary proceedings  stand  concluded  with   the  decision  of  the disciplinary  authority.   It is the disciplinary  authority which  can  impose the penalty and not the enquiry  officer. Where the disciplinary authority itself holds an enquiry, an opportunity  of hearing has to be granted by him.  When  the disciplinary  authority differs with the view of the enquiry officer  and  proposes  to come to a  different  conclusion, there  is  no  reason as to why an  opportunity  of  hearing should  not  be  granted.   It   will  be  most  unfair  and inequitous  that  where the charged officers succeed  before the  enquiry  officer, they are deprived of representing  to the  disciplinary  authority before that  authority  differs with  the  enquiry officer’s report and, while  recording  a finding of guilt, imposes punishment on the officer.  In our opinion,  in  any such situation, the charged  officer  must have  an  opportunity to represent before  the  disciplinary authority  before final findings on the charges are recorded and punishment imposed."

     The   Court  further  held   that  the  contrary  view expressed  by  this Court in State Bank of India  vs.   S.S. Koshal  1994  Supp.(2)  SCC 468 and State of  Rajasthan  vs. M.C.  Saxena (1998) 3 SCC 385 was not correct.

     In  view  of the above, a delinquent employee has  the right  of  hearing not only during the  enquiry  proceedings conducted  by the Enquiry Officer into the charges  levelled against  him  but also at the stage at which those  findings are considered by the Disciplinary Authority and the latter, namely,  the Disciplinary Authority forms a tenative opinion that  it  does not agree with the findings recorded  by  the Enquiry  Officer.   If the findings recorded by the  Enquiry

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 20  

Officer are in favour of the delinquent and it has been held that  the  charges  are  not  proved, it  is  all  the  more necessary  to  give  an  opportunity   of  hearing  to   the delinquent  employee  before reversing those findings.   The formation  of opinion should be tentative and not final.  It is  at  this  stage that the delinquent employee  should  be given  an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed  to  disagree  with  the findings  of  the  Enquiry Officer.   This  is  in consonance with the  requirement  of Article  311(2)  of the Constitution as it provides  that  a person  shall not be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges  against  him and given a reasonable opportunity  of being heard in respect of those charges.  So long as a final decision  is  not taken in the matter, the enquiry shall  be deemed  to  be pending.  Mere submission of findings to  the Disciplinary  Authority does not bring about the closure  of the enquiry proceedings.  The enquiry proceedings would come to an end only when the findings have been considered by the Disciplinary Authority and the charges are either held to be not  proved  or  found  to  be  proved  and  in  that  event punishment is inflicted upon the delinquent.  That being so, the "right to be heard" would be available to the delinquent up  to  the final stage.  This right being a  constitutional right   of  the  employee  cannot  be  taken  away  by   any legislative  enactment or Service Rule including Rules  made under Article 309 of the Constitution.

     Applying  the  above principles to the facts  of  this case,  it  would  be noticed that in the  instant  case  the District  Judge (Enquiry Officer) had recorded the  findings that  the  charges  were not proved.   These  findings  were submitted to the Disciplinary Committee which disagreed with those   findings  and  issued  a  notice  to  the  appellant requiring  him to show-cause why he should not be  dismissed from  service.   It is true that along with  the  show-cause notice,  the reasons on the basis of which the  Disciplinary Committee  had  disagreed with the findings of the  District Judge   were   communicated  to   the  appellant   but   the Disciplinary  Committee  instead  of   forming  a  tentative opinion  had  come  to a final conclusion that  the  charges against  the  appellant were established.  The  Disciplinary Committee,  in  fact,  had  acted  in  accordance  with  the statutory  provisions contained in Rule 9(4)(i)(a)&(b).   He was   called  upon  to   show-cause  against  the   proposed punishment  of dismissal as will be evident from the minutes of  the  Disciplinary Committee dated 21st June, 1993  which provide as under:-

     "Decision  :  Discussed.  For the reasons recorded  in Annexure  "A"  hereto,  the  Committee  disagrees  with  the finding  of  the Enquiry Officer and finds that the  charges levelled  against the delinquent Judicial Officer have  been proved.   It  was, therefore, tentatively decided to  impose upon the Judicial Officer penalty of dismissal from service. Let  notice,  therefore,  issue to the  delinquent  Judicial Officer  calling  upon  him  to show cause  why  penalty  of dismissal from service as prescribed in Rule 5(1)(ix) of the Maharashtra  Civil  Services (Discipline and Appeal)  Rules, 1979 should not be imposed upon him.

     Show cause notice will be accompanied by a copy of the Report  of the Inquiring Authority and the reasons  recorded

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 20  

by this Committee."

     These  minutes  were recorded after  the  Disciplinary Committee  had  considered the Enquiry Report  and  differed with  the findings and recorded its final opinion in para 10 of its reasons as under:-

     "10.   The  Disciplinary Committee is of  the  opinion that  the  findings recorded by the Enquiry Officer on  both the charges cannot be sustained.  The Committee, after going through  the oral and documentary evidence on record, is  of the opinion that both the charges against the delinquent are proved.  The delinquent is a Judicial Officer who has failed to  maintain  the  absolute integrity in  discharge  of  his judicial duties."

     Pursuant  to the above minutes, a notice dated 24.6.93 was  issued  to  the appellant which after  reproducing  the minutes  of  the  Meeting  of  the  Disciplinary   Committee proceeded to say as under:-

     "As  required  by the Disciplinary Committee  I  issue this  notice calling upon you to show-cause why the  penalty of  dismissal from service should not be imposed upon you in view of the charges held established.  Time of 15 days, from the  date  of  receipt of this notice, is given to  you  for submitting  your  reply, failing which it shall be  presumed that  you  do not wish to make any representation  regarding the penalty.

     A  copy  of  the report of the Enquiry  Officer  dated 21.12.92  and  a copy of Annexure ‘A’ are enclosed  herewith for ready reference.

     Yours faithfully, Sd/- Registrar"

     Along  with  the  show-cause  notice, a  copy  of  the findings recorded by the Enquiry Officer as also the reasons recorded  by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show-cause only against the punishment  proposed by the Disciplinary Committee which had already  taken a final decision that the charges against the appellant were proved.  It was not indicated to him that the Disciplinary  Committee  had  come  only  to  a  "tentative" decision  and that he could show cause against that too.  It was  for  this  reason  that  the  reply  submitted  by  the appellant  failed  to  find  favour  with  the  Disciplinary Committee.

     Since  the  Disciplinary  Committee did not  give  any opportunity  of  hearing  to the appellant before  taking  a final decision in the matter relating to findings on the two charges  framed  against  him,  the  principles  of  natural justice,  as laid down by a Three-Judge Bench of this  Court in  Punjab  National Bank & Ors.  vs.  Kunj  Behari  Mishra, (1998)  7 SCC 84 = AIR 1998 SC 2713, referred to above, were violated.

     Mr.    Harish  N.   Salve,   learned  Senior   Counsel appearing  on  behalf of the respondent, has contended  that the  disciplinary proceedings come to an end either when the delinquent  is exonerated of the charges or when  punishment

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 20  

is inflicted upon him on charges being proved.  Since in the instant  case,  the  Disciplinary  Committee  had  given  an opportunity  of  hearing  to the  appellant  before  finally recommending  to  the State Government to dismiss  him  from service,  the  principles  of  natural  justice  were  fully complied with and that too at a stage earlier than the stage when   the  curtain  was  finally   brought  down   on   the proceedings.   He  contended  that  not  only  the  findings recorded  by  the Enquiry Officer but the reasons for  which the  Disciplinary  Committee  had   not  agreed  with  those findings,  were  communicated  to the appellant  to  whom  a notice was also issued to show-cause why he be not dismissed from  service.   He  further contended  that  the  appellant submitted a reply in which he attacked the reasons for which the  Disciplinary Committee had decided to disagree with the findings of the Enquiry Officer and, therefore, in the given circumstances of this case, it cannot be said that there was failure or denial of opportunity at any stage.

     The  contention  apparently appears to be sound but  a little  attention  would  reveal  that it  sounds  like  the reverberations from an empty vessel.  What is ignored by the learned  counsel is that a final decision with regard to the charges  levelled  against  the appellant had  already  been taken  by  the Disciplinary Committee without providing  any opportunity  of  hearing  to him.  After having  taken  that decision,  the members of the Disciplinary Committee  merely issued  a notice to the appellant to show-cause against  the major  punishment  of dismissal mentioned in Rule 5  of  the Maharashtra  Civil  Services (Discipline and Appeal)  Rules, 1979.   This procedure was contrary to the law laid down  by this  Court  in the case of Punjab National Bank (supra)  in which  it had been categorically provided, following earlier decisions, that if the Disciplinary Authority does not agree with  the  findings of the Enquiry Officer that the  charges are  not  proved,  it  has to provide,  at  that  stage,  an opportunity  of hearing to the delinquent so that there  may still  be  some  room left for convincing  the  Disciplinary Authority  that the findings already recorded by the Enquiry Officer  were just and proper.  Post-decisional  opportunity of hearing, though available in certain cases, will be of no avail, at least, in the circumstances of the present case.

     The   Disciplinary   Committee   consisted   of   five Seniormost  Judges of the High Court which also included the Chief  Justice.   The  Disciplinary Committee took  a  final decision  that  the  charges   against  the  appellant  were established  and recorded that decision in writing and  then issued  a  notice  requiring him to show cause  against  the proposed  punishment of dismissal.  The findings were final; what  was  tentative  was the proposal to inflict  upon  the appellant the punishment of dismissal from service.

     We  may now examine the reasons on the basis of  which the  Disciplinary Committee has disagreed with the  findings of exoneration recorded by the Enquiry Officer.

     There  were  two charges against the  appellant  which related  to  the  demand  of  bribe  for  the  acquittal  of complainant,  Deepak  Trimbakrao Deshmukh, in  two  Sessions Trials  in  which  the complainant was  the  accused  facing charge,  inter  alia, under Section 302 IPC.  The  appellant had  allegedly demanded a sum of Rs.10,000/- in each case at the  residence  of Dr.  Naranje, at Rashtra  Bhasha  Prachar Samiti  Road,  Wardha  on 23.1.1990, in the first  case  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 20  

again  on  18.12.1990 at about 8.00 P.M.  at Dr.   Naranje’s residence  in the second case.  These charges were sought to be  proved  by producing the complainant  Deepak  Trimbakrao Deshmukh,  his  wife  Mrs.    Sudha  Deepak  Deshmukh,  Mrs. Madhuri  Krishnarao Pradhan (Panch witness of the trap)  and Shri  Anand  Digambar  Deshmukh,  Deputy  Superintendent  of Police,  A.C.B.   Nagpur.   The  appellant  in  his  defence examined  himself  and produced Shri Sunil  Gopalrao  Bapat, Advocate,  Wardha;   Shri  Arjun  Pancham  Patil,  Advocate, Wardha;   Dr.Sopan  Chahadeo Naranje, Medical  Practitioner, Wardha  and  Shri  Manik Tulsiram Tamgadge,  Bailiff,  Arvi, District Wardha.

     The   complainant  had  also   approached  the   Anti- Corruption  Bureau  and informed them of the demand made  by the  appellant whereupon the Anti-Corruption Bureau,  acting through  Shri Anand Digambar Deshmukh, Deputy Superintendent of Police, A.C.B.  Nagpur, laid a trap against the appellant but  the  trap  was unsuccessful and  failed.   The  Enquiry Officer  held that this was a false trap laid by Shri  Anand Digambar  Deshmukh, Deputy Superintendent of Police,  A.C.B. Nagpur  in connivance with the accused without obtaining the prior  permission  of  the   Chief  Justice.   Although  the complaint  made  by Deepak Trimbakrao Deshmukh to the  Anti- Corruption  Bureau  and  the  laying  of  trap  against  the appellant by them was not part of the charge nor involved as an  issue  before  the Enquiry Officer, the  Department  led evidence  in  that regard and produced Shri  Anand  Digambar Deshmukh,  Deputy  Superintendent of Police, A.C.B.   Nagpur and  the  Panch  witness Mrs.  Madhuri  Krishnarao  Pradhan, besides  complainant’s wife, Mrs.  Sudha Deepak Deshmukh who allegedly wanted to offer the money to the appellant.

     The  story  of demand of Rs.10,000/- in  each  Session Trial  was  denied  by  the appellant who,  as  pointed  out earlier,  examined  himself  as also Dr.  Naranje  at  whose house the demand was allegedly made on both the occasions as also  Mr.   Bapat,  advocate  who  allegedly  acted  as  the go-between.   These  witnesses denied the whole story.   The trap laid by the Anti-Corruption Bureau had also failed.

     Deepak  Trimbakrao  Deshmukh had specifically  alleged that  the demand of Rs.10,000/- in each of the two  Sessions Trials  was  made by the appellant at the residence  of  Dr. Naranje.   This  was also set out in the  Transfer  Petition No.88  of  1991,  filed in the High Court, in which  it  was stated  that the Meeting of 23rd November, 1990 in which the amount  in  question  was demanded, had taken place  in  the house  of  Dr.  Naranje.  But in his complaint to  the  High Court on 27th November, 1990, the complainant himself stated that  this Meeting took place at the house of the appellant. This  was enough to falsify the whole story and the  Enquiry Officer  was  justified in rejecting the story of demand  in the  background of other facts set out above.  Complainant’s wife  Mrs.  Sudha Deepak Deshmukh who was allegedly  present at  the  house  of  Dr.  Naranje was found  by  the  Enquiry Officer to be unsuccessful in describing the position of the main  entrance  of  Dr.  Naranje’s house  apart  from  other discrepancies  but  the Disciplinary Committee rejected  the infirmity  found  by the Enquiry Officer on the ground  that the  Enquiry Officer had applied the standard of proof of  a criminal case to the disciplinary proceedings.

     We fail to appreciate the approach of the Disciplinary Committee  which has gone by surmises and conjectures rather

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 20  

than  by  the  evidence  on record.  The  statement  of  Dr. Naranje and that of Mr.  Bapat, advocate have not been taken into  consideration by the Disciplinary Committee and it has relied  upon  the statement of complainant alone to come  to the  conclusion  that  Mr.    Bapat,  advocate  had  assured acquittal  provided  the complainant withdrew  his  Transfer Petitions.

     The High Court has overlooked another important aspect of  the case which is to the effect that Sessions Trial Nos. 28  of  1982  and 37 of 1987 were pending in  the  court  of Sessions  Judge, Wardha (Mr.  S.S.Nikhree), from where these were  transferred to the court of Addl.  Distt.  &  Sessions Judge   (Mr.   S.T.   Kharche)   who  attempted  to  proceed substantially  with  those  trials,  but  Deepak  Trimbakrao Deshmukh  created all sorts of hinderances and obstacles and ultimately  filed  a  Transfer Petition (No.  387  of  1988) under  Section  409  of the Criminal Procedure Code  in  the Sessions  Court,  Wardha, in which various allegations  were made   against  the  Presiding   Officer,  namely,   Mr.S.T. Kharche,  but  the  Transfer  Application  was  rejected  on 5.11.1988  by  the Sessions Judge.  Thereafter,  when  those cases  were  taken  up by Mr.   Kharche,  Deepak  Trimbakrao Deshmukh filed an Application on 8.5.1990 for adjournment to enable  him  to  file Vakalatnama of his counsel.   On  this Application,  an  elaborate  order  was  passed  by  Mr.S.T. Kharche  who,  however,  having regard  to  the  quarrelsome nature of the accused, requested the Sessions Judge, Wardha, to transfer those cases to some other court and consequently both  the  Sessions Trials were transferred to the court  of Second  Addl.   Distt.  & Sessions Judge,  Wardha,  presided over  by  the  appellant.  In that court also,  the  accused (Deepak  Trimbakrao  Deshmukh) adopted dilatory  tactics  to prolong  the  trial  and ultimately gave an  application  in which  he  stated  that he was certain that  "no  clean  and impartial  justice" was going to be done to him in both  the Sessions Trials.  This was treated as a contumacious conduct and  the  appellant passed an order taking cognizance  under Section 345 of the Criminal Procedure Code read with Section 228  of the IPC and detained the accused in custody.  He was also  issued  a  notice requiring him to show cause  why  he should  not  be punished under Section 345 of  the  Criminal Procedure Code.  The accused did not submit any reply and he was  consequently  convicted and sentenced to pay a fine  of Rs.200/-  or in default to suffer simple imprisonment for 15 days.  The accused, however, deposited the fine in the court on the same day.

     This  order  was  challenged by  the  accused  (Deepak Trimbakrao  Deshmukh)  in Criminal Appeal No.  108  of  1991 before  the  Nagpur Bench of the Bombay High Court, but  the appeal  was  dismissed on 9.3.1992 and the order  convicting the  accused  under  Section 345 Cr.P.C.  was  upheld.   The accused  continued,  even  thereafter,   to  make  frivolous applications  for adjournments and ultimately approached the High  Court  for  transfer of both the cases to  some  other court.  The High Court stayed the proceedings and called for the  explanation  of  the appellant.   The  explanation  was submitted  by  the  appellant, but  thereafter  the  accused withdrew   both  the  Transfer   Applications.    When   the appellant,  as Presiding Officer of that court, proceeded to dispose  of those cases, the accused made the allegations in question  against  him and reported the matter to the  Chief Justice  of  the Bombay High Court, and as  stated  earlier, disciplinary  proceedings were started against the appellant

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 20  

which ultimately resulted in his dismissal.

     These  facts  will indicate that the  accused  (Deepak Trimbakrao  Deshmukh)  had  taken the court, where  the  two Sessions  Trials  were pending against him, for a ride.   He had  adopted similar tactics in the court of Sessions Judge, Wardha,  and  again  in the court of Ist  Addl.   Distt.   & Sessions   Judge,  Wardha,  where   these  two  cases   were transferred,  and  yet again in the court of  the  appellant where   these   Sessions  Trials   came  to  be   ultimately transferred.

     After  withdrawal  of Transfer Applications, when  the appellant  proceeded  with  the  two  Sessions  Trials,  the Disciplinary Committee inferred that the appellant was still pursuing his earlier demand of bribe as otherwise he himself would  have written that he would not do these cases.  This, we feel, is wholly fallacious.  After the Transfer Petitions were  withdrawn  and  the  stay  order  passed  therein  was vacated,  the appellant, as Presiding Officer of the  court, had  to proceed with those cases as he had, so long as those cases  were on his file, no other choice.  If the  appellant had written to the Sessions Judge to transfer those cases to some  other court, the accused (Deepak Trimbakrao  Deshmukh) would have succeeded in his designs in avoiding the court of the  appellant.  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.

     Under  Article 235 of the Constitution, the High Court has  a  duty  to  protect the officers  of  the  subordinate judiciary  from  unscrupulous  litigants  and  lawyers.   In Ishwar Chand Jain vs.  High Court of Punjab & Haryana & Anr. AIR 1988 SC 1395, it was, inter alia, observed that the High Court  while  exercising  its  power  of  control  over  the subordinate  judiciary is under a Constitutional  obligation to  guide  and  protect judicial officers.  It  was  further observed  that  an  honest and strict  judicial  officer  is likely  to  have  adversaries in the  mofussil  courts;   if trifling  complaints  relating to judicial orders which  may have  been upheld by the High Court on the judicial side are entertained,  no Judicial Officer would feel protected;  and it  would  be  difficult  for him to  discharge  his  duties honestly  and  independently.  It is, therefore,  imperative for  the High Court to protect its honest judicial  officers by  ignoring  ill-conceived or motivated complaints made  by the unscrupulous lawyers and litigants.

     Having  regard  to the circumstances of this case,  we are  of the view that the Disciplinary Committee was  wholly in  error  in disagreeing with the findings recorded by  the Enquiry Officer and the charges levied against the appellant were not established.

     It  was lastly contended by Mr.  Harish N.  Salve that this  Court cannot reappraise the evidence which has already been  scrutinised  by  the Enquiry Officer as  also  by  the Disciplinary Committee.  It is contended that the High Court or  this Court cannot, in exercise of its jurisdiction under Article  226 or 32 of the Constitution, act as the Appellate Authority  in  the domestic enquiry or trial and it  is  not open  to  this  Court  to   reappraise  the  evidence.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 20  

proposition  as  put forward by Mr.  Salve is in very  broad terms  and cannot be accepted.  The law is well-settled that if  the  findings  are  perverse and are  not  supported  by evidence  on record or the findings recorded at the domestic trial  are  such  to which no reasonable person  would  have reached,  it would be open to the High Court as also to this Court to interfere in the matter.  In Kuldeep Singh vs.  The Commissioner  of Police & Ors., JT 1998(8) SC 603 = (1999) 2 SCC  10,  this Court, relying upon the earlier decisions  in Nand Kishore vs.  State of Bihar AIR 1978 SC 1277 = (1978) 3 SCC  366  = (1978) 3 SCR 708;  State of Andhra  Pradesh  vs. Sree  Rama Rao AIR 1963 SC 1723 = (1964) 3 SCR 25;   Central Bank  of  India  vs.  Prakash Chand Jain AIR  1969  SC  983; Bharat  Iron Works v.  Bhagubhai Balubhai Patel & Ors.   AIR 1976  SC  98 = (1976) 2 SCR 280 = (1976) 1 SCC 518  as  also Rajinder  Kumar  Kindra  vs.  Delhi  Administration  through Secretary  (Labour) & Ors.  AIR 1984 SC 1805 = (1985) 1  SCR 866  =  (1984) 4 SCC 635, laid down that although the  court cannot  sit  in  appeal over the findings  recorded  by  the Disciplinary   Authority  or  the   Enquiry  Officer  in   a departmental   enquiry,  it  does  not   mean  that  in   no circumstance  can the court interfere.  It was observed that the  power  of judicial review available to a High Court  as also  to  this  Court under the Constitution  takes  in  its stride  the  domestic  enquiry as well and  the  Courts  can interfere  with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were  such  as  could not have been reached by  an  ordinary prudent man or the findings were perverse.

     In  the instant case, we have scrutinised the  reasons of  the  Disciplinary Committee and have found that  it  had taken  its  final decision without giving an opportunity  of hearing  to the appellant at the stage at which it  proposed to differ with the findings of the Enquiry Officer.  We have also  found that the complainant’s story with regard to  the place  at  which  the  demand  was  allegedly  made  by  the appellant  was inconsistent.  We have also noticed that  the trap  laid  by the A.C.B., Nagpur against the appellant  had failed and was held by the Enquiry Officer to be a farce and not  having  been  laid  with the permission  of  the  Chief Justice.   We have also noticed that there was absolute non- consideration  of  the  statements   of  defence  witnesses, namely,  Dr.   Naranje  and  Mr.  Bapat,  advocate,  by  the Disciplinary   Committee.   This  factor   in   itself   was sufficient   to  vitiate  the   findings  recorded  by  that Committee contrary to the findings of the Enquiry Officer.

     For  the reasons stated above, we allow the appeal and set  aside the judgment dated 21.6.1996 passed by the Bombay High  Court  by  which  the appellant’s  Writ  Petition  was dismissed.   We hereby allow the Writ Petition and quash the order  of  dismissal  dated 08.11.1993 passed by  the  State Government  with  the direction that the appellant shall  be reinstated  in  service  forthwith  with  all  consequential benefits,  including all arrears of pay which shall be  paid to  him  within three months.  There will be no order as  to costs.