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CASE NO.: Special Reference Case  1 of 2004

PETITIONER: U/A 317(1) of the Constitution of India

RESPONDENT: IN R/O: SMT. SAYALEE SANJEEV JOSHI, MEMBER, MAHARASHTRA PUBLIC SERVICE COMMISSION

DATE OF JUDGMENT: 17/05/2007

BENCH: B.P. SINGH, TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

REFERENCE NO. 1 OF 2004  

P.K. BALASUBRAMANYAN, J.

1.              This reference is made by the Hon’ble President  of India under Article 317 of the Constitution of India in  relation to the conduct of the respondent, a member of the  Maharashtra Public Service Commission.  The question is  whether respondent No. 3 is liable to be removed from  office on the ground of misbehaviour.   

2.              The said respondent joined the Maharashtra  Public Service Commission as a member on 8.5.2001.   She was arrested on 8.6.2003 in a crime registered in  connection with a complaint lodged by the Public Service  Commission relating to mal-practices in respect of an  examination conducted in the year 1999.  Twenty one  others were also arrested.  The respondent was lodged in  jail.  This led to His Excellency the Governor of  Maharashtra to request His Excellency the President of  India to initiate action under Article 317 of the  Constitution of India for her removal.  He also suspended  her from office until an order had been passed by the  President under clause (1) of Article 317 of the  Constitution.  It is seen that the respondent was  subsequently released on bail though at least on three  earlier occasions, her prayers for bail were rejected.  Since  a request was made to the President of India to act in  terms of Article 317(1) of the Constitution, the placing of  the respondent under suspension under Article 317(2) of  the Constitution was proper.  Considering the nature of  the scam that emerged and the constitutional position  enjoyed by the Public Service Commission, the reference  to this Court under Article 317(1) of the Constitution is  seen to be the proper step to be taken.  

3.              The Governor made the request to the President  by letter dated 5.8.2003 to initiate action under Article  317 of the Constitution.  His Excellency made the  reference by letter dated 13.12.2003.

4.              Article 317 of the Constitution reads as under: "317.   Removal and suspension of a  member of a Public Service

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Commission\027(1) Subject to the provisions  of clause (3), the Chairman or any other  member of a Public Service Commission  shall only be removed from his office by  order of the President on the ground of  misbehaviour after the Supreme Court, on  reference being made to it by the President,  has, on enquiry held in accordance with the  procedure prescribed in that behalf under  article 145, reported that the Chairman or  such other member, as the case may be,  ought on any such ground to be removed.

(2)     The President, in the case of the Union  Commission or a Joint Commission, and  the Governor in the case of a State  Commission, may suspend from office the  Chairman or any other member of the  Commission in respect of whom a reference  has been made to the Supreme Court under  clause (1) until the President has passed  orders on receipt of the report of the  Supreme Court on such reference.

(3)     Notwithstanding anything in clause  (1), the President may by order remove from  office the Chairman or any other member of  a Public Service Commission if the  Chairman or such other members, as the  case may be,--

(a)     as adjudged an insolvent; or (b)     engages during his term of office  in any paid employment outside  the duties of his office; or  (c)     is, in the opinion of the President.

(4)     If the Chairman or any other member  of a Public Service Commission is or  becomes in any way concerned or  interested in any contract or agreement  made by or on behalf of the Government of  India or the Government of a State or  participates in any way in the profit thereof  or in any benefit or emolument arising  therefrom otherwise than as a member and  in common with the other members of an  incorporated company, he shall, for the  purposes of clause (1), be deemed to be to  be guilty of misbehaviour."

5.              The contours of enquiry when a reference is  made by the President of India under Article 317 (1) of the  Constitution of India has been clearly drawn by this Court  in Special Reference No. 1 of 1983 [(1983) 3 S.C.R. 639).  This Court therein has held that the President’s prima  facie satisfaction based on available materials was enough  for making a reference to this Court under Article 317(1)  of the Constitution of India and that there was no need for  the President to obtain the opinion of any fact finding body  before making a reference.  The enquiry which this Court  is required to hold is not into the limited question  whether, on the basis of facts found by the President, the  charge of misbehaviour is made out and whether the

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misbehaviour is of such a nature as to warrant the  removal of the person from his office.  The inquiry  contemplated by the Article is into the facts themselves so  as to enable the Court to pronounce upon the question  whether the allegations made against the member are  proved.  This Court also indicated the procedure that  could be conveniently followed when this Court is called  upon to answer a reference under Article 317(1) of the  Constitution of India.   

6.              In Special Reference No. 1 of 1985 [(1994) 2  S.C.R. 37], a Constitution Bench adopted the procedure  indicated in Special Reference No. 1 of 1983.  In Reference  No.1 of 1985 the guidelines to be followed by the Court in  recording evidence at the enquiry so as to enable this  Court to answer the reference are also set down.  

7.              The present reference was made by the President  of India on 30.12.2003. This court issued notices to the  Attorney General for India, the Advocate General for the  State of Maharashtra, the Maharashtra Public Service  Commission and the concerned member.  After the  preliminary steps were completed, on 13.12.2004, this  Court requested the Attorney General for India to  scrutinize the materials and file a statement setting out  the ground or grounds of misbehaviour along with the  statement of facts forming the basis thereof which is to be  inquired into within the meaning of Article 317(1) of the  Constitution of India.  On 2.3.2005, the learned Attorney  General for India filed a statement containing charges  accompanied by the statement of facts, list of witnesses  and list of documents.  On 1.4.2005, this Court directed  the Maharashtra State Government and the Maharashtra  Public Service Commission, to assist the learned Attorney  General for India by making available all the relevant  documents accompanied by translations so that the  learned Attorney General for India can form an opinion on  the question of reframing or supplementing the charges.   The Attorney General for India was also to take into  consideration the explanation furnished by the concerned  member of the Public Service Commission.  Originally,  twenty two charges were proposed.  Initially they were  reduced to six charges.

8.              The learned Attorney General for India finally  suggested that out of the six charges proposed, charge  Nos. 3 and 6 may be dropped since they were not strictly  within the purview of the reference made by the President  since they related to conduct subsequent to the  misbehaviour complained of.  The learned Attorney  General for India suggested that charge Nos. 1, 2, 4 and 5  may be framed against the member.  This Court heard the  objections of the concerned member and the Public  Service Commission to the suggestion made by the  Attorney General for India and passed an order on  5.10.2005 directing that charge Nos. 1, 2, 4 and 5  contained in the note of the learned Attorney General for  India be framed against the concerned member.  On  25.10.2005, this Court adopted the procedure and the  guidelines followed in the two instances referred to above  and directed the evidence to be taken by a City Civil Court  Judge of Bombay to be nominated by the Principal Judge,

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Civil Court, Bombay.  The chief examination of the  witnesses was to be by way of affidavits filed in this Court  and the cross examination was to be done in the presence  of the nominated City Civil Court Judge to be recorded by  him.  This Court directed that after recording the  evidence, the concerned Judge shall forthwith transmit  the records to the Registrar General of this Court for the  matter being placed before the Bench.  Pursuant to this,  evidence was taken and the records transmitted to this  Court by the City Civil Court Judge.  During arguments, it  was discovered that due to some confusion, the concerned  member against whom the charges are framed had not  been examined.  The member also wanted her statement  recorded.  This Court therefore passed an order on  17.1.2007 directing that the five affidavits filed by the  concerned member before this Court be treated as her  evidence in chief-examination and she may be cross  examined in the presence of a Registrar of this Court who  was subsequently named by order dated 22.1.2007.   Pursuant thereto, the concerned Registrar of this Court  recorded the evidence of the respondent and the matter  again came up before this Court for consideration.  The  matter was heard in detail with reference to the relevant  materials on record.

9.              The following are the charges framed by this  Court based on the suggestions of the learned Attorney  General for India on examination of the relevant materials.                  "Charge -1 Whereas Ms. Sayalee Joshi has,  directly or indirectly, tried to protect the  interests of 24 candidates who appeared in  an examination conducted by the MPSC  and has also attempted to influence an  officer of the Commission to do such illegal  actions in the future in conjunction with  one Mr. Nitin Sathe.

               Charge \026 2

Whereas the respondent No. 3, Ms.  Sayalee Joshi committed an act of  misbehaviour by interfering with an  internal inquiry being conducted by the  Secretary of MPSC regarding alleged  malpractices in the examination for  PSI/Asstt/STI conducted by the MPSC.

Charge \026 3 (renumbered; original  Charge  NO.4 as suggested by the Attorney General)           Whereas Ms. Joshi deliberately and in  a mala fide manner omitted to disclose a  very vital fact to the Commission, namely  that her daughter was appearing for an  examination being conducted by MPSC,  which disclosure was mandatory as per  Office Order No. 4/1998 dated 05.05.1998  of the MPSC and hence sought to suppress  vital and material information from the  Commission, which affects her integrity and  complete devotion to duty in an impartial  manner, amounting to misbehaviour under

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Article 317(1) of the Constitution.  

Charge - 4 (renumbered; original Charge  NO.- 5 as suggested by the Attorney  General)

Whereas Ms. Joshi, in collusion with  Mr. Nitin Sathe, attempted to sabotage  lodging of a complaint by a candidate as  regards malpractices in the examination  conducted by the MPSC for the posts of  PSI/Asstt/STI and hence abused her  official position and acted contrary to the  interests of the Commission and the  candidates, and is guilty of misbehaviour  under Article 317(1) of the Constitution."

10.             During the enquiry exhibits 1 to 71 were marked  and 17 witnesses were examined.  The respondent also got  herself examined.  Elaborate submissions were thereafter  made on the charges framed.

11.             Before we proceed to deal with the separate  charges which we have renumbered as 1 to 4 for  convenience certain facts may be noted.  The various  complaints that arose were in connection with a  competitive examination announced by the Public Service  Commission on 14.7.1999 for recruitment of Police Sub- inspectors/Sales Tax Inspectors and assistants.  The  Preliminary Examinations were held on 18.6.2000 and the  results of the Preliminary Examinations were declared on  2.11.2000.  There were complaints regarding the  Preliminary Examination and a decision is said to have  been taken by the Public Service Commission on  29.11.2000 to permit all the candidates whether they had  qualified in the Preliminary Examination or not, to appear  for the main examination.  A Notification in that behalf  was issued on 6.12.2000.  On 8.3.2001 the main written  examination was held at different centres in the State.   The scanning of the mark-sheets took place between  23.3.2001 to 16.5.2001.

12.             At all these times the respondent was not a  member of the Public Service Commission.  She joined  only on 8.5.2001. 13.             Learned counsel for respondents No.3 argued as  if this reference was a criminal trial and the charge  against the respondent has to be proved beyond  reasonable doubt.  Learned counsel for the Public Service  Commission submitted that these proceedings were  neither in the nature of a criminal trial nor in the nature  of the service dispute, but that it was a question of an  inquiry into the conduct of a member of the Public Service  Commission who was expected to maintain highest  standards of integrity.  This Court in Re Reference under  Article 317(1) of the Constitution of India [(1990) 4  S.C.C. 262] while answering Special Reference No. 1 of  1983 had noticed: "The case of a government servant is,  subject to the special provisions, governed  by the law of master and servant, but the  position in the case of a Member of the

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Commission is different.  The latter holds a  constitutional post and is governed by the  special provisions dealing with different  aspects of his office as envisaged by Articles  315 to 323 of Chapter II of Part XIV of the  Constitution.  In our view the decisions  dealing with service cases relied upon on  behalf of the respondent have no  application to the present matter and the  reference will have to be answered on the  merits of the case with reference to the  complaint and the respondent’s defence."

14.             While answering Reference Case No. 1 of 1995  [(1997) 3 S.C.C. 216], this Court held that the attempt to  influence the result of a candidate appearing in an  examination conducted by the Public Service Commission  would amount to misbehaviour on the part of a member of  the Commission.  In Special Reference No. 1 of 1997  [(2000) 4 S.C.C. 309], this Court explained the position  held by the members of the Public Service Commission  thus: "Keeping in line with the high expectations  of their office and need to observe absolute  integrity and impartiality in the exercise of  their powers and duties, the Chairman and  members of the Public Service Commission  are required to be selected on the basis of  their merit, ability and suitability and they  in turn are expected to be models  themselves in their functioning.  The  character and conduct of the Chairman and  members of the Commission, like Caesar’s  wife, must therefore be above board.  They  occupy a unique place and position and  utmost objectivity in the performance of  their duties and integrity and detachment  are essential requirements expected from  the Chairman and members of the Public  Service Commissions."

This Court towards the end further stated: The credibility of the institution of Public  Service Commission is founded upon faith  of the common man on its proper  functioning. The faith would be eroded and  confidence destroyed if it appears that the  Chairman or the Members of the  Commission act subjectively and not  objectively or that their actions are suspect.  Society expects honesty, integrity and  complete objectivity from the Chairman and  Members of the Commission. The  Commission must act fairly, without any  pressure or influence from any quarter,  unbiased and impartially, so that the  society does not loose confidence in the  Commission. The high constitutional  trustees, like the Chairman and Members  of the Public Service Commission must for  ever remain vigilant and conscious of these  necessary adjuncts.

The task of this Court therefore is to find out as a fact  whether the materials disclose a conduct on the part of

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the respondent (a constitutional functionary) which would  be misbehaviour within the meaning of Article 317(1) of  the Constitution of India.  Our approach to the reference  in answering the charges framed has to be on this basis.   

15.             There is no doubt that the first respondent-  Public Service Commission has clearly fallen from grace  and the exalted status it enjoys under the Constitution.   That one scam after another should erupt in respect of  such a constitutional body is a very disturbing aspect.  If  constitutional institutions fail in their duties or stray from  the straight and narrow path, it would be a great blow to  democracy a system of governance that we have given  unto ourselves and the great vision our constitutional  framers had about the future of this country.  During the  course of our detailed enquiry, we also felt that it is  possible that an attempt is also made not to expose  everything in connection with the erupted scandal but to  brush at least some of the aspects under the carpet.  This  is also an unhappy augury for the working of our  institutions.   

16.             We shall first summarise the evidence in the  light of the facts set out in support of the charges framed.  

The evidence 17.             As has been noticed, the Main written  examination for the post was conducted on 18.3.2001 and  the scanning of the Mark Sheets took place  on 23.3.2001.   Respondent No.3 joined the Commission as a Member on  8.5.2001.  The charge against respondent no.3 is that on  25.4.2002 the Controller of Examinations Mr. Sarode  (PW.15) visited respondent no.3 at her residence at her  behest.  According to the facts in support of the charge,  Mr. Nitin Sathe was also present at that time at the  residence of respondent no.3.  After introducing Mr. Nitin  Sathe to PW.15, respondent no.3 told PW.15 that a List of  24 candidates furnished by Nitin Sathe for favourable  treatment while evaluating the results, were her own  candidates and that PW.15 should do all that is possible  to help those candidates.  The further charge is that she  also told PW.15 that he should work in conjunction with  Nitin Sathe in future also so that benefit could be had by  all by such association.  Respondent No.3 while admitting  that she had met PW.15 at her residence, flatly denied  that Nitin Sathe was present on the occasion, that she had  introduced Nitin Sathe to PW.15 and had told him about a  list of 24 candidates or about the prospect of working  together in future.  According to her version, PW.15 had  come to her residence to discuss the problem of his son  who was doing his course in Bachelor of Commerce and  she being a Commerce graduate, he wanted her help in  correcting the course of his son’s carrier.    

18.             In support of the second charge, it is alleged that  an internal enquiry was conducted into the complaints  received and during the enquiry respondent No.3  summoned Sarode and directed him not to disclose the  name of Nitin Sathe in the ongoing enquiry.  This, on her  part was an interference with the enquiry which amounted  to misbehaviour.  On her part therespondent had denied  that she issued such a direction to Sathe.    

19.             In support of the third charge it was alleged that  Poorva Joshi, the daughter of respondent No.3 applied for

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appearing in an examination conducted by the  Commission from two centres and that she failed to  disclose that fact to the Commission.  Though the  respondent admitted this fact she pleaded that she had no  such obligation since such an obligation to disclose rested  only on employees and officers of the Commission and not  on its members.  She also took up the stand that her  daughter had actually not appeared in the examination.

20.             In support of the fourth charge it was set out  that the respondent had got Nitin Sathe to threaten PW 9  Aparna Dubey and compelled her to withdraw her original  complaint and to make a second representation to the  Commission handed over to the respondent which she  received and handed over to the acting Chairman Wani.   On search of her residence the representation wherein the  seal of the Commission was recovered.  The documents  were not once handed over to her officially.   

21.             PW.15 in his chief examination by way of  affidavit in this Court, had sworn to the fact that he had  made a free and voluntary confession on 28.11.2002  before the Metropolitan Magistrate, 23rd Court, Esplanade,  Mumbai regarding the irregularities and illegalities in the  working of the Maharashtra Public Service Commission  and its concerned Members and Officers which came to be  known as M.P.S.C. Scam.  He had made the confession  while he was in judicial custody.  During the relevant  period, he was working as the Controller of Examinations.   He had given the details in his confession which was a free  and voluntary one.  He has further sworn : "I say that,  sometime in the month of April-2002, Smt. Sayalee  Sanjeev Joshi, member of the Maharashtra Public Service  Commission, asked me to meet her at her official  residence.  During this period the process of declaration of  results of the Police Sub-Inspector & Sales Tax  Inspector/Assistants Exams-1999, was in its final stages.   That, when I visited the official residence of Smt. Sayalee  Sanjeev Joshi on 25.4.2002 she introduced me to one Mr.  Nitin Sathe, who was already present there.  I say that,  while entering the official residence of Smt. Sayalee  Sanjeev Joshi, I made an entry of my visit in the visitors  book kept at her official residence.  During this meeting at  her official residence, Smt. Sayalee Sanjeev Joshi told me  that the 24 candidates supplied by Mr. Nitin Sathe were  her own candidates and the interests of these candidates  were to be protected and these candidates were to be  selected for the above said Police Sub Inspector/Sales Tax  Inspector/Assistant Exam-1999.  I say that, these  candidates had qualified in the Main Examination of  Police Sub-Inspector & Sales Tax Inspector/Assistants  Exam-1999.  That, during the said meeting Smt. Sayalee  Sanjeev Joshi also put forward a proposal to me that I  should work with Mr. Nitin Sathe in the future for mutual  benefits.  Smt. Sayalee Joshi had called me to her  residence on 1st May 2002 also and she again told me that  I should not disclose the name of Shri Nitin Sathe to  anyone during the enquiry.  I have made an entry of this  visit in the visitor’s book kept at the residence of Smt.  Sayalee Joshi."  The confession referred to was marked in  evidence as Ext.53.

22.             The visit of PW.15 to respondent no.3 at her  residence on 25.4.2002 is corroborated by the visitors’  register kept at the building in which respondent no.3 was

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residing.  That visit is also not denied by respondent no.3.   In his confessional statement PW.15 had stated : "the  work of the result of the examination was in last stage,  somewhere in the month of April-May 2002, Smt. Joshi,  Member of the Commission asked me to meet her at her  house.  Meantime, Smt. Dhamdhere had started inquiry  on the basis of anonymous complaints.                         When I went to the house of Smt. Joshi that  time, one Nitin Sathe was present there.  Smt. Joshi told  me that 24 candidates supplied by Nitin Sathe were of her  own.  Hence she instructed me not to disclose the name of  Nitin Sathe in the inquiry.  In the same meeting, she also  put forward a proposal before me to do the same work in  future with the help of Nitin Sathe.               At the same time, an advertisement was  published for the recruitment of the Gazetted officers in  the State Service.  Smt. Joshi told me that her daughter  was one of the candidates.  She also suggested to me that  we had to pass her in the examination.  I told her that it  was not possible."

23.             In his cross-examination on behalf of respondent  no.3, it was brought out that PW.15 was associated with  the Commission from the year 1972 onwards.  He joined  as an Assistant and rose to the position of Controller of  Examinations.  It was suggested to him that Dr. Karnik  who became the Chairman of the Commission was  responsible for his elevation to the position of Controller of  Examinations.  It was also brought out that at the time he  was appointed as the Controller of Examinations, Mr.  Edwankar was senior to him amongst the Deputy  Secretaries.  PW.15 asserted that he got the post on the  basis of seniority and accepted it, though he was  reluctant.  It was a post that carried a huge responsibility.   He agreed with the suggestion that two reasons combine  insofar as what came to be called the Scam of 1999.  They  were, one of letting every candidate appear for the Main  Examination and secondly the decision to re-scan the  answer sheets.  He also admitted that some persons had  collected money from the candidates promising that they  would be allowed to take the Main Examination.  Those  candidates were the unsuccessful ones in the Preliminary  Examination.  It was also brought out that based on a  conspiracy, the candidates who had failed were induced to  hold a demonstration in front of the office of the  Commission so that the Commission could take a fresh  decision based on their alleged grievance.  It was also  brought out that the meeting with regard to the 1999 re- examination took place on 29.11.2000, at a time when  respondent no.3 had not joined the Commission.  To a  question, he answered that answer sheets of those from  whom money had been taken, were to be changed, but it  became impossible because of him, because he refused to  be a part of the game.  He stated that there were lot of  complaints and Public Interest Litigations in the High  Court and as a result of those complaints, the charge of  Controller of Examinations came to be taken away from  him pursuant to the order of 8.4.2002 passed by Mr Wani  who was then the Acting Chairman of the Commission.   He also admitted that in May 2002, the Secretary to the  Commission Mrs. Seema Dhamdhere had commenced her  enquiry.  He also admitted that he was the first person to  be arrested in connection with the M.P.S.C. Scam.  He was  arrested on 29.6.2002.  He also stated in paragraph 24

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that : "Till I gave my confessional statement I did not write  any letter or written intimation either to the court or to the  police about the involvement of the respondent Mrs.  Joshi."  He asserted that loss of face had led to his  repentance and that had induced him to make the  confession before the Metropolitan Magistrate.  It was  suggested to him that a complaint file came to be opened  against him containing personal allegations and the  allegations were about his misbehaviour with lady  employees.  It was suggested to him that he had a special  relationship with Dr. Karnik and Dr. Karnik had  deliberately shut his eyes to the existence of the personal  file of complaints against him while promoting him as the  Controller of Examinations.  He admitted that he was  called up and a written intimation was also sent to him  from the Commission with regard to the affidavit in chief  examination that he had filed in this reference.  He knew  that he was swearing to the affidavit as a witness.  He was  aware that he would be a witness against one of the  accused in favour of the prosecution.  Then he stated : "It  is not true that I gave the confessional statement falsely to  save myself.  It is not true that I swore to the affidavit in  this reference falsely to save myself.  It is not true that a  promise was held out that if I made a confessional  statement and swore the affidavit I would be made  approver and I would get free from the botheration of the  prosecution.  It is not true that I never felt any repentance.   It is not true that this stand is adopted by me to save my  skin." (paragraph 31).  Regarding the meeting with  respondent no.3 this was what was brought out  "I cannot  mention the date but it was in April 2002 that according  to me the respondent called me.  It was either in the  second or third week of April 2002.  I did not tell this fact  to anybody that the respondent had called me as just  mentioned.  She had called me to her chamber in the  office and told me to meet her at her residence.  The date  was not fixed on which I should see her at her residence.   I had mentioned in my confessional statement that this  event took place sometime in April-May 2002.  It is true  that in the confessional statement the date 25.4.2002 was  not specifically mentioned by me.  In my confessional  statement I did not mention that I met the respondent on  1.5.2002.  In fact there is no mention of my second visit at  all in my confessional statement.  I did not disclose to  anybody in the office of the Commission the fact of my  visit to the residence of the respondent either on  25.4.2002 or 1.5.2002.  I had not mentioned in my  confession that I made entry in the visitors book when I  visited the residence of the respondent.  I had not given  the list of the 24 candidates either in my confessional  statement or in my affidavit in this reference (see page  no.3 of the affidavit)." (paragraph 32).  He admitted that :  "it is true that the fact that the respondent told me in  connection with the 24 candidates that the interest of  those candidates were to be protected is not mentioned in  my confessional statement.  Volunteers: Whatever I could  recollect was mentioned in the confessional statement.  It  is true that it is not mentioned in my confessional  statement that those candidates had qualified in the main  examination of Police Sub Inspector and Sales Tax  Inspector/Assistants exams 1999.  The facts just referred  to in relation to my confessional statement and the  affidavit were not mentioned by me to anybody in the  interregnum.  As far as the question as to whether I  agreed with what according to me the respondent

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proposed, I say that by then the finalisation of the result  was in progress and nothing was in my hand." (paragraph  33).  He denied the suggestion that the respondent had  never called him on 25.4.2002.  He also denied the  suggestion that he visited the respondent on that day on  the pretext that his son was not getting through his  B.Com and since the respondent belonged to that faculty  she could give necessary guidance.  He denied the  suggestion that the real reason for his visit to the  respondent was that he wanted to create a soft corner  with the respondent because his name had appeared in  the anonymous complaint.  He denied the suggestion that  he saw the respondent in her chamber with a request to  see to it that no prosecution was started against him and  he offered that he was prepared to submit his resignation  when it became clear that the matter would escalate.  He  denied the further suggestion that the respondent had  spurned his request.  He admitted that he could have  refused to swear to the affidavit in this reference.  He had  not talked to anyone in the Commission before he swore to  the affidavit in chief examination.  He denied that the  recitals in his affidavit about Nitin Sathe having met him  in the manner mentioned therein were incorrect.  He  denied the suggestion that the respondent never sought  his help in any manner for helping her daughter Purva as  stated in his affidavit.  He denied the suggestion that the  affidavit filed by him was prepared as instructed by Mrs.  Seema Dhamdhere.  He denied the suggestion that his  entire evidence was false and was being given under the  threat of the police and as an exercise in self preservation.                   24.             The confessional statement marked Ext.53 was  also proved through the Metropolitan Magistrate who  recorded it examined as PW.14.  In his chief examination  PW.14 submitted that he was working as Metropolitan  Magistrate, 23rd Court, Esplanade, Mumbai.  Then Sorode  (PW.15) was produced before him as per the directions of  the Sessions Court, Mumbai.  Sarode was produced from  custody in the Central Jail.  He stated that when PW.15  was produced before him he asked all police personnel  and other persons to vacate this Court.  He confirmed  from the witness that no body connected with this case  was present in the Court and allowed only two constables  on duty in the Court for his safety to be present.  When  PW.15 wanted to make the statement voluntarily he had  put certain questions and recorded the answers.  The  witness had stated that he wanted to make a confessional  statement.  He had on the first day sent PW.15 back to  custody with a direction that he be produced again on  25.11.2002.  On 25.11.2002 he again asked PW.15  whether he wanted to make a confession and he stated  that he wanted to make a confession voluntarily.  He also  ascertained that PW.15 had not been ill-treated while in  custody.  PW.15 had told him that he was repenting for  the act done by him and that had induced him to make a  confessional statement and to reveal the truth and to help  the law.  PW.14 had given PW.15 further 24 hours to  rethink on his wanting to make a confession and had  directed that he be produced before him on 26.11.2002  but PW.15 was produced before him on 28.11.2002 due to  some administrative reason.  After ascertaining that the  confession was being made freely and on his own volition  by PW.15, he recorded the confessional statement.  He  recorded it after ensuring that no one interested in the  case was present in court.  After the completion of the

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recording of the confessional statement, he obtained the  signature of PW.15 in the recorded statement.  He also  countersigned it.  He, thereafter, endorsed that the  statement was recorded in his presence and it was a full  and true account of what PW.15 had stated.  Before he  made the confession he had issued a warning to PW.15  that he was not bound to make any confession but if he  made one, the same would be used as evidence against  him.  He also certified the grounds on which he believed  that the confession was genuine and recorded the  precautions taken by him while recording the confessional  statement.  He put the confessional statement in a sealed  cover and submitted the same on 28.11.2002 to the  Registrar, City Sessions Court, Greater Mumbai in  compliance with the order of the Sessions Judge, Greater  Mumbai.  In his cross-examination, at the instance of  respondent no.3, he reiterated that PW.15 was brought  before him on two or three occasions before he recorded  the confession.  He had recorded the entire confession in  the open Court.  The doors were all kept open.  PW.15 was  making the statement in the form of narrative and the  confessional statement was dictated by PW.14 to the  Typist.  He interrupted PW.15 only when he found that  PW.15 was mentioning something that was unnecessary  or was getting unnecessarily verbose or irrelevant.  There  was no mention of these interjections in the confessional  statement recorded by him.  The basis for deciding that a  particular statement was irrelevant was whether he  travelled beyond the scope of MPSC case.  The facts of the  MPSC case were mentioned in the letter that was given to  him by the prosecution.  That letter was handed over to  him about four days before the recording of the  confessional statement. He had asked the questions in  Marathi and not in English.  He had translated the  statement into English.  He was also a Maharashtrian and  his mother tongue was Marathi.  PW.15 was fluently  talking in Marathi.  He was conversant with the provisions  of Criminal Manual.  It was true that there was a provision  in the Manual that as far as possible such statement  should be recorded in the language of the accused and if it  was not practical then in the language of the Court in  English.  He became aware of the contents of the  confessional statement since he had dictated it and read it  over to PW.15.   There were two parts in the confession,  namely, relating to some of the accused in the first part  and relating to the respondent in the second part.  In the  first part there was a reference to the main conspiracy and  also a reference to his own participation in the said  conspiracy.  Going through the second part that pertains  to the respondent he could say that PW.15 did not  mention that he agreed with the proposal of the  respondent.  It appears that as far as the respondent was  concerned according to PW.15, either he declined the  proposal of the respondent or he was just a listener  thereof.  He agreed that it would have been better to have  recorded the confessional statement in Marathi.  He came  to know through a police officer, sometime in January  2006, that he had to file an affidavit before this Court.   The officer concerned was ACP Poojari.  He did not sign  the affidavit on the same day that the ACP visited him.   First of all he addressed a communication to the Chief  Metropolitan Magistrate informing him that he had been  asked to submit the affidavit he had submitted in this  Court as per a letter of the Secretary of the Commission.   The Chief Metropolitan Magistrate had written to the

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Secretary of the Commission that being a judicial officer,  PW.14 was not supposed to file such an affidavit.  But he  was informed that filing of the affidavit was necessitated  as per the directions of this Court.  It was only thereafter  he signed the affidavit in chief examination.  He had told  the officer concerned that he had only recorded the  confessional statement of PW.15 and that his affidavit  should remain restricted only to the statement of those  facts.  He had indicated what should be the contents of  the affidavit and thereafter it was drafted and shown to  him.  The officer had brought it to him, he had read it and  signed it.  He had told the officer that he had nothing to  do with the respondent and his affidavit should be  restricted only to the recording of the confessional  statement of PW.15.   25.             Going by the procedure set down by this Court  in the decisions referred to earlier, the admissibility and  relevance of a piece of evidence has to be decided by this  Court.  In that context an argument was raised by learned  counsel for the third respondent that Ext.53, the  confessional statement was not admissible in evidence.  It  was alleged to be that of a co-conspirator and it did not  relate to and under Section 10 of the Evidence Act it could  not be admitted as evidence since it was a statement made  by one conspirator in the absence of the other with  reference to past acts done in the actual course of carrying  out the conspiracy after it had been completed.   Relying  on the decision in Mirza Akbar vs. King Emperor (AIR  1940 PC 176) counsel submitted that things said, done or  written while the conspiracy was on foot are relevant as  evidence of the common intention, once reasonable  ground has been shown to believe in its existence.   But it  would be a very different matter to hold that any narrative  or statement or confession made to a third party after the  common intention or conspiracy was no longer operating  and had ceased to exist as admissible against the other  party.  There is then no common intention of the  conspirators to which the statement can have reference.

26.             He also referred to the decision of this Court in  Jayendra Saraswathi Swamigal vs. State of Tamil Nadu  (2005 (2) SCC 13)  wherein it was held that only if prima  facie evidence of existence of conspiracy is given and  accepted, evidence of acts and statement made by one of  the conspirators in furtherance of the common object  would be admissible.   He pointed out that in that case  statement of alleged co-conspirators was sought to be  used to implicate the appellant-accused and it was held  that having been recorded long after the event when the  conspiracy had culminated, that was not admissible.

27.             We do not think that it is necessary for us to  rule finally on this question since that would be a matter  for consideration by the appropriate criminal court  wherein respondent No.3 has also been prosecuted.  In the  proceedings before us we have the evidence of PW 15 who  allegedly made the confession Ext.53 and the evidence of  PW15 before us is sought to be corroborated with  reference to a prior statement or confessional statement  made by him before PW 14.  The recording of the  statement has been proved before us by examining PW 14.   It is really a case of appreciating the evidence of PW 15  before us in the light of all the circumstances disclosed,  including the making of a previous statement by him

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which according to the Commission corroborates or  supports his present evidence.   Though Ext.53  may or  may not be used as evidence of conspiracy in terms of  Section 10 of the Evidence Act, we think that the same  can be used as a corroborative piece of evidence being a  previous statement made by PW 15.   We are, therefore, of  the view that Ext.53 cannot be totally discarded while  considering whether respondent No.3 has been guilty of  misbehaviour in this inquiry under Article 317 of the  Constitution.  For the purpose of deciding the question  whether respondent No.3 is guilty of misbehaviour, it may  not be necessary to establish the existence of a conspiracy  when we consider the charges  that have been framed and  charge No.1 which is the subject matter of this discussion.   We are more concerned with the acceptability of the  evidence of PW 15, as to whether respondent No.3 did in  fact introduce him to Nitin Sathe, whether she told him  that the list of 24 given by Nitin Sathe included her own  people and that PW 15 should help them through the  examination, that he must work in coordination with Nitin  Sathe for their mutual benefit and that he should help her  daughter Poorva to qualify.    

28.             PW 10 Jyoti  Shidojirao Desai deposed in her  chief examination that she was a candidate for the MPSC  Examination which was held in 2000.   She had passed  the preliminary examination and she had failed in the  main examination.   She had given a detailed statement to  the Investigating Officer and the Anti Corruption Bureau,  Mumbai supported by the relevant documents.  She had  also made an application before the Chief Justice of the  High Court of Bombay regarding the mal-practices and  corruption in the MPSC examination committed by Nitin  Sathe and respondent No.3.  She has stated that Nitin  Sathe had approached her and told her that he could get  her selected in the interview and final selection if she paid  Rs.1 lakh to Rs.3 lakhs as per the preference for the  particular post.   He had told her that he had the  necessary contacts.   But she did not accept the proposal.   He had come again after two days to her residence and  repeated the offer.  He had told her that if she did not  believe him then he would take her to the residence of  respondent No.3, who was staying in Pune and who  looked after all the money matters for the interview and  selection of candidates.  He also told her that she could  personally talk to respondent No.3.   But according to PW  10 she again refused his proposal.  She was disqualified in  the examination due to malpractices/corruption carried  out in the said examination by Nitin Sathe and respondent  No.3 as she refused to pay the amount demanded by Nitin  Sathe on behalf of respondent No.3.  After reading the  newspapers reporting the MPSC scam she personally  approached the High Court and filed an application  addressed to Hon’ble the Chief Justice praying for an  enquiry into the scandal.  She had also approached the  Anti Corruption Bureau, Mumbai where her statement  was recorded.  In her cross examination she reiterated  that she failed in the main examination.  She had  thereafter moved the Commission for reassessment.  There  was no change in the result.  Thereafter as far as that  examination was concerned she had no concern with the  Commission.  Then in the year 2000 she offered her  candidature for the post of Class I and Class 2 State  Government Officers.  It was called State Civil Services  Examination.  She explained that the examination was

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held in three stages, a preliminary, main and the  interview.  Qualifying marks for the main examination was  460.   She had secured 471 marks.   Her marks sheet was  marked as Ext.36.  The maximum marks in the interview  were 100.  She had secured 471 out of 800, in the written  examination and 33 out of 100 in the interview.  She had  received a total of 504 marks.  The qualifying marks for  group A were 537 and in group B 516.  She was short by  33 marks in the case of group A and by 12 marks in the  case of group B.  She stated: "According to me in June 2001 the results were  out for the main examination of Civil Services.  It  was declared in the first week of June 2001.  It  is my case that on that very day Nitin Sathe saw  me at the address where I was residing at.  It is  my case that 2-3 days thereafter Nitin Sathe met  me again at the same place."

               It was brought out that the address she gave  and where she met Nitin Sathe was the address of her  father in Hindustan Antibiotics Colony, Pimpri, Pune.  She  could not even approximately state when she started  residing at that address.  She got married on 15.5.2002.   Her husband serves at Pune Race Course.  She was  residing with him after marriage.  It was not true that after  marriage she and her husband were residing at the Pimpri  Address.  But in her complaint to the Chief Justice of  Bombay High Court she had given the Pimpri address.  She denied the suggestion that Nitin Sathe never met her  and that is why she is creating a confusion with regard to  the address.  The respondent was not in the panel of the  interviewers in the Civil Services examination before which  she appeared.  She admitted that she got her final result  at her Rajendera Nagar address on 18.8.2001.  She  further stated: "It is not true that the allegations pertaining to  the Nitin Sathe are the product of the meeting of  myself, Aparna Dubey, Kalpandey and Poojari.   It is not true that Nitin Sathe had never met me  and my case in that behalf is incorrect.  It is true  that I had given out the address of Rajendra  Nagar in the 1999 examination also.  I now say  that I do not remember if I had given that  address then."

29.             PW 12 Valmiki Shivram Ohwal swore in chief  examination that he was working in the Maharashtra  Public Service Commission since 1980 as a peon and in  the year 1996 he was promoted as ’Naik’.  He has spoken  about the 1999 Competitive Examination for the  recruitment of Police Sub-Inspector and Sales Tax  Inspector/Asstts. Conducted by MPSC in three stages,  preliminary examination, main examination and  physical  test/interview.  He continues as a peon/Naik and in the  year 2002 he was attached to respondent No.3, a Member  of the Commission and used to go along with her outside  Mumbai for interviews.  At the time of interviews of the  examination 1999 he was at the Circuit House, Pune  along with respondent No.3 and at that time Nitin Sathe  and one Kailas Jadhav used to come at the interview place  i.e. the Circuit House, Pune.  In the year 2002 he had  received a call at the office of respondent No.3 from Nitin  Sathe.  He told Nitin Sathe that respondent No.3 was busy  in a meeting.   Nitin Sathe told him to convey the  information of his phone call to respondent No.3 as and

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when she became free from the meeting.  In his cross  examination he stated that he continued in the service of  the Commission even now.  He was attached to the  establishment section of the Commission.  This statement  was recorded by ACP only once and that was in the year  2004.  It was taken on 19.1.2004.  His statement was  recorded after the present reference was made to this  Court.  He could not speak in English.  He gave his  statement in Marathi and it was recorded in English.  He  asserted "it did so happen that I received a telephone call  to the fact that I should inform Madam that the caller had  called up.  I cannot remember the date, day, time and the  year but the said telephone call was received."  Every  member of the Commission had a cabin.  He would open  the cabin in the morning and close it in the evening.  The  dusting and sweeping was done at about 8.30 am by  Hamals and for that purpose they would take the key from  the security guards.  He would report for work between  9.15 am and 9.30 am.  The members of the Commission  report for work at about 10.30 am and they remain there  till 4.00/4.30 pm.  Family of the respondent was based at  Pune.  She would visit Pune during week end and  holidays.   The respondent would leave for Pune in the  evening preceding non-working Saturdays and would  return on the morning of Monday.  Whenever she came  back from Pune, she would report for work at about  11.00/11.30 am.  His affidavit filed in court was prepared  by a clerk in the Commission and it was not prepared as  per the dictate of ACP Pujari.

30              PW 17 Poojari in his chief examination stated  that on the complaint of Seema Dhamdere, Secretary,  Maharashtra Public Service Commission, Mumbai he  registered an FIR on 20.6.2002 vide ACBCR No.33/2002  under Sections 409, 418, 420, 465, 466, 467, 468, 471,  477(a), 380, 381, 457 read with 120(B) of Indian Penal  Code read with 13(1)(d) of Prevention of Corruption Act,  1988 and commenced investigation.  He first arrested  Sarode, the Controller of Examinations and subsequently  arrested the others.  Till date, 29 persons were arrested.   The investigation is continuing with the permission of the  Special Court, Mumbai.  According to him during the  course of the investigation the stages of conspiracy in the  conduct of PSI/STI/Asstt., 1999 examination of MPSC  was revealed as under: "I.     Collecting huge amounts from the  prospective candidates with an assurance of  success in the said MPSC examination  immediately after the advertisement for the said  post (April 2000 onwards).

II.     Ensuring by manipulation that all the  students (even those who had failed the  Preliminary examination) appeared for the main  written exam and later qualify through the  interview to be held for recommendation to the  posts (August 2000 onwards).

III.       Procuring original blank answer sheets  for the purpose of forging answer sheets to be  subsequently filed in with the correct answers  (29.3.2001 onwards)

IV     Offering huge amounts to the employees of  MPSC with the intention to subvert their

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integrity and to include them in the said  conspiracy (On or about May 2001).

V.              Obtaining illegally, the keys of the  cupboard where in the answer sheets are kept  (on or about July 2001).

VI.             Entering the MPSC Office using  duplicates of the original keys, for the main and  rear doors which were kept at Mantralaya and  then substituting the original answers sheets  with the forged marked answer sheets. (On or  about 21/22 July 2001).

VII.            Tampering with the MPSC computers  contining scanned data with original answer  sheets for the said examination which will  facilitate the re-scanning of forged answer sheets  which were to be later replaced with the original.  (On or about 25th July, 2001).

VIII.           Ordering a re-scan to be conducted  after a gap of few days from the data of  tampering of computers and replacing the forged  answer sheets.  (On or about 27th July, 2001).

IX.             Selecting the unmerited candidates on  the basis of increased marks assessed after re- scanning.  Selecting the unmerited candidates  by flouting all rules, under the pretext of  rechecking and calling answer sheets out of  Headquarters i.e. Mumbai Office to Pune (2nd  August, 2001 onwards).

X.              Managing Physical test and interview  for final selection (15.10.2001 to 16.3.2002)."

31.             He deposed that during the course of the  investigation, at the final stage the statement of  respondent No.3 was recorded in the capacity of a witness.   However, later on, on getting evidence of respondent No.3  having joined the conspiracy, she came to be arrested in  this case on 8.6.2003.   He stated that sanction for  prosecution has been accorded.  Respondent No.3 was  arrayed as accused No.22.  Prior to her arrest, her  residence at Nilambri, Church Gate, Mumbai, was  searched.  The search resulted in recovery of confidential  MPSC documents including certain papers relating to a  candidate Kumari Aparna  Saheblal Dubey who was also a  witness in this enquiry.  A Panchnama had been prepared.    According to him during the course of investigation it was  revealed that respondent No.3 was in regular contact with  the accused persons vide CR No.33/2002 like Nitin Sathe  who was earlier arrested in CR No.27/1996 relating to the  Maharashtra Public Service Commission paper leakage  case.  It was also revealed during investigation that  respondent No.3 was in contact with accused persons like  Kalash Pandurang Jadhav, who was conducting classes at  Barshi, Solapur for competitive examinations conducted  by the Maharashtra Public Service Commission.   Respondent No.3 was also found to be in contact with  Kailash Jadhav from her telephone No.2670541 between  27-2-2002 and 22-3-2002.  Kailash Pandurang Jadhav  was arrested in the present case on 29.11.2005 and was  presently in judicial custody.   He also stated that it was

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noted during investigation of respondent No.3 that she  was in regular contact with Mohammed Chand Mulani,  father of a candidate, Riyaz Mulani.  Mohammed Chand  Mulani was an accused in the famous Telgi Stamp Paper  Scam.  She was also in contact with candidate Riyaz  Mulani.  He has given evidence regarding the confession  made by Sarode and about the fact that the respondent  had met Sarode and had put him in contact with Nitin  Sathe.  He stated that the confessional statement of  Sarode was corroborated by the entry made in the visitors  book maintained at the residece of respondent No.3 at  Nilambri Building, Church Gate, Mumbai.   The telephone  print out received from service providers had revealed that  respondent No.3 had contacted accused Nitin Sathe from  her office on telephone No.22670541 to his mobile  No.9822484228 eight times between 28.3.2002 and  25.9.2002.  She was in contact with Nitin Sathe from her  residential office telephone 2820760 to his same mobile  twenty times between 30.3.2002 to 20.5.2002.   Respondent No.3 was using mobile No.9869066882 and  from it she had contacted Nitin Sathe four times between  18.5.2002 to 27.5.2002 on his mobile number and the  land line No.4362099 at Pune.  The statement of Aparna  Dubey who was allegedly threatened by Nitin Sathe at the  instance of respondent No.3 and who later on retracted  the statement by making a fresh application which was  personally accepted by respondent No.3 from her.  The  statement of  Jyoti Desai who was contacted by accused  Nitin Sathe and was offered success was recorded.   The  statement of other candidates recorded during the course  of investigation indicated that Nitin Sathe had collected  huge amounts promising them success.  The statement of  Dr. B.S. Solunke, Member, MPSC, the statement of the  peon of respondent No.3, the statement of the husband of  the respondent, Mr. Sanjeev Joshi and the statement of  the sister-in-law Neha Joshi were recorded.  He also  deposed that the special court had also taken cognizance  of the offence committed by respondent No.3.

32.             In his cross-examination he admitted that in the  first charge-sheet, in the first supplementary charge-sheet  and in the second supplementary charge-sheet, the  respondent was shown as a witness.  In the third  supplementary charge-sheet also she was shown as a  witness.  But in the charge-sheet filed on 3.9.2003 the  respondent as shown as an accused.  Her statement was  recorded on various dates.  It was brought out that Nitin  Sathe was arrested on 12.11.2002 and that Sarode was  the first to be arrested on 29.6.2002.  He had contacted  Sarode on 25.6.2002 and had again interrogated him on  26.6.2002.  Between 26.6.2002 and 29.6.2002 on which  day Sarode was arrested no other statements were  recorded.  After Sarode was remanded to judicial custody,  PW.17 had, with the permission of the Court, met Sarode  in Jail.  That was on 4.10.2002 and that was regarding  the missing answer sheets of 5 candidates.  He was shown  Ext.53, confessional statement and asked whether he was  present at the time the said statement was opened before  the Sessions Judge on 13.12.2002.  He stated that he  could not remember whether he was present on that day.   He had questioned the driver of the respondent, but he did  not remember whether had had questioned the maid  servant.  He had also made enquiries with the security  guards of the building which contained the respondent’s  official residence.  He had not shown to any of them the

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photographs of Nitin Sathe or Sarode.  He had made  enquiries with regard to the payment of money by the  candidates.  He had recorded the statements of more than  2000 candidates in this behalf.  He stated that according  to the respondent in her statement of 4.12.2002, Sarode  had seen her at her residence in the last week of April in  connection with the problem concerning his son’s  education.  It was also her version that she owned a plot  of land at Pune and she wanted to sell it and that she was  trying to sell it through Nitin Sathe, who according to her,  was an estate agent.  It was put to him that in an affidavit  filed by the respondent before this Court, there was a  reference to a public interest litigation allegedly at his  instance and also to a private complaint under MCOCA  filed by an accused Avinash Sanas against the witness.   He stated that the allegations were  looked into and  rejected as being without substance.  He had been serving  the police department for the last 23 years.  He denied  that in a private complaint the Special Judge found a  prima facie case against him.  He had taken a certified  copy of the order dismissing the complaint.  He admitted  that Dr. Kadam had made a complaint against him  alleging harassment.  He denied the suggestion that when  Dr. Kadam made a complaint he implicated the wife of Dr.  Kadam also and she is also an accused.  He stated that,  however, it was true that the wife of Dr. Kadam was also  an accused.  He had made enquiries with regard to the  assets of Dr. Kadam.  He admitted that a complaint was  made against him and other police officers by one Mrs.  Manisha Nichad who asserted that the same was also  rejected.  In paragraph 4 of his affidavit in chief  examination he had mentioned the stages of the  conspiracy and the period thereof.  It was true that  originally there were 22 charges against the respondent  before this Court and that only 4 charges were framed  ultimately.  Though the charge with regard to contact of  the respondent with Kailash Jadhav and Mohammed  Chand Mullani had been dropped, they were referred to in  his affidavit to explain the contact of the respondent with  Jadhav and Sathe.  According to him charge no.5  covered  the charge pertaining to Poorva, the daughter of the  respondent.  He denied the suggestion that these  references were made by him in his affidavit merely to  cause prejudice.  He stated that there was sanction both  by the Governor and the President.  He denied the  suggestion that he had indulged in arm twisting tactics as  far as the respondent was concerned.  He denied the  suggestion that he had falsely implicated her.  It was not  true that there was no evidence against the respondent.  It  was not true that he had been after the respondent for her  to tender her resignation from the membership of the  Commission.  He denied the suggestion that the  confession of Mr. Sarode was inspired by him during his  meeting with him when he would be brought before the  Court and on the pretext of recording his statement on  4.10.2002.  He admitted that he had been to the Central  Jail to meet Sarode on 4.10.2002.  He denied the  suggestion that he had brain washed Sarode on the  assurance that Sarode would be made an approver.  He  denied the suggestion that Sarode made the confessional  statement at his instance.  He denied the suggestion that  the various affidavits filed in this case were drafted by  him.  There was also a disproportionate assets case  against Sarode, the investigation into which was in  progress.  He denied the suggestion that the said case was

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being kept as a sword hanging over the said of Sarode to  ensure that he fell in line.

33.             PW.9 Aparna Saheblal Dubey stated in her chief  examination that she had given the statements before the  Anti Corruption Bureau, Mumbai regarding the  malpractices and corruption in the working of MPSC and  concerned Members and Officers which is, commonly  known as MPSC Scam Case.  In the year 1999-2000 she  applied for and passed in the District Sport Officers’  Screening Test as also in the Examination for recruitment  of PSI/STI/Assistant.  In October, 2000 Nitin Sathe  approached her at her residence and after introducing  himself he enquired about her candidature for the post of  Tahsil Sports Officer.  He told her that she had obtained  less marks in the interview and therefore would be  disqualified for the said post.  But he offered that he could  get her qualified for the said post if she paid him a sum of  Rs.1 lakh.  He also told her that he had got very close  contacts with Controller of Examinations Mr. Sarode and  one of the Members, respondent no.3.  The witness had  refused his offer.  She was declared to be disqualified in  the examination when the results were announced.  At  that time, she recollected the offer of Nitin Sathe which  gave her the idea that there must be some sort of  malpractice/corruption in the MPSC Examinations.  On  the basis of that, on 20.4.2002, she and her friend Sandip  Shinde  who was also one of the candidates, made a joint  application addressed to the Chairman of MPSC  complaining that some kind of unfair practice had taken  place in the process of the Main Examinations conducted  by MPSC for recruitment Exam 1999.  Pursuant to that  complaint, the Secretary to the Commission Mrs. Seema  Dhamdhere by letter dated 22.4.2002 had requested her  to attend the office of the Commission on 7.5.2002 with  the evidence available with her.  After she had submitted  the complaint with the MPSC Office on 20.4.2002, Nitin  Sathe came to her and threatened her for making the  application.  She and Sandip Shinde also received  threatening calls frequently.  Due to this she became  scared and did not go to meet Mrs. Seema Dhamdhere due  to fear.  After some days Nitin Sathe again came to her  and asked her to retract the application made by her and  Sandip Shinde on 20.4.2002 to the MPSC.  On the threats  and instructions of Nitin Sathe she and Sandip Shinde  again prepared an application to the effect that the  previous complaint made by them dated 20.4.2002 was  false and as directed by Nitin Sathe they made allegations  against Mrs. Seema Dhamdhere, the Secretary to the  Commission in the second application.  Thereafter, as per  instructions of Nitin Sathe she and Sandip Shinde met  respondent no.3 on or about 12.6.2002 in her Mumbai  Office and handed over the set of six copies of the said  application which the respondent accepted.  The  respondent retained all the copies with her and told them  that she will send those copies to the concerned Members.   After getting messages from Anti-Corruption Bureau, she  had gone to the ACB Office.  Her statement was recorded  with reference to the offence committed, her application  dated 20.4.2002 and her second application which was  handed over to the respondent on 12.6.2002 retracting  her earlier application dated 20.4.2002.  The second  application for retraction was made at the instance of  Nitin Sathe.  After the arrest of the respondent, she was  called to the ACB Office for recording her statement,

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where she identified respondent no.3 as the same person  to whom she had given six copies of her second  application retracting her earlier application dated  20.4.2002.  The second application was made as per the  threats and instructions of Nitin Sathe and handed over to  the respondent as directed by Nitin Sathe.  It was  personally accepted by the respondent who stated that she  will send those to all Members of the Commission.  During  the course of her statement she was shown the papers  relating to the post of Superintendent in which she was a  candidate.  The papers were pertaining to her and were  found to be recovered by the police from the residence of  the respondent after the respondent’s arrest.  This was the  same examination in which Nitin Sathe had demanded  Rs.2,50,000/- from her for getting her qualified for the  said post.  At that time Nitin Sathe had offered to take her  to the residence of the respondent.  In her cross- examination she said that while coming from Pune to give  evidence she was put up in the Visawa Government rest  house.  The arrangements for the residence of herself,  Jyoti Desai and Kalpandey who also came to Mumbai,  were made by the Commission.  They had not gone to the  office of the Commission the previous day.  She had  known Jyoti Desai from the year 1996 and Mr. Kalpandey  from 1998.  They were all candidates in the 1999  Examinations.  She had not gotten through in the  Preliminary Examinations at that time.  Jyoti Desai had  got through.  Most probably Kalpandey also did not get  through.  Ultimately, they were all allowed to take the  Main Examination.  In the Main Examination Jyoti Desai  got through though she was not sure if Jyoti got through  or not.  She and Kalpandey did not succeed.  Her father  was a doctor, agriculturist as well as Civil contractor.  She  was originally from Mahur, District Nanded.  Mahur was  about 550 to 600 Kilo Meters from Pune.  When her  attention was drawn to paragraph 3 of her affidavit in  chief examination and to the allegation that she had  applied for the post of District Sports Officer and had  passed in the Screening Test she said that the contents  were incorrect.  The consequential statement in paragraph  5 was also not correct.  Her affidavit was prepared by the  Law Officer of the Commission.  She did not know his  name.  According to her, Nitin Sathe came to her in  October 2000 and that was in Pune and at that time she  was staying in Sadashi Peth hostel.  He had come in the  evening, when he met her first, she had no previous  acquaintance with him.  He had come to that hostel  all  alone.  Since men were not permitted inside the girls  hostel, Nitin Sathe met her at the place of the landlord in  a guest room.  Nitin Sathe was there for about 30 minutes  or so.  When she asked him who he was, he told her that  he was the brother of the respondent.  It was suggested to  her that she had not disclosed that aspect in the  statement made by her before the police.  In answer she  asserted that it should be there.  It was true that her  interview had already been taken place in September 2000  before Nitin Sathe met her.  The members who were there  at the time of her interview were Mr. Wani and others.   The respondent was not in that panel.  She could not get  to know the marks scored by her in the interview because  they were not communicated to the candidates.  It was put  to her that the certificate produced by her was incomplete.   She answered that the certificates produced by some  others also were incomplete but the respondent allowed  other candidates who did not mention the dates but only

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in her case it was not accepted.  She could name those  candidates.  Great injustice had been done to her.  It was  suggested to her that she had produced an incorrect  certificate showing her income.  She stated that it was  true that She and Sandip Shinde gave a joint application  to the Commission on 20.4.2002.  That application was  referred to in paragraph 5 of her affidavit in chief  examination.  It was not true that copies thereof were sent  to high dignitaries, though their names were mentioned in  the application.  They had made the complaint application  only to the Chairman of the Commission.  Mr. Wani was  the acting Chairman then.  It was true that in response to  her complaint a communication was received from the  Secretary of the Commission Mrs. Seema Dhamdhere.   That communication asked her to come to the office of the  Commission at 4.00 p.m. along with the evidence.  She  had informed the Commission telephonically that on  account of illness she would not be able to visit their office  on 7.5.2002.  It was true that she had made an  application to the Commission in June, 2002 retracting  the complaint of 20.4.2002.  The two documents were got  marked Exts.30 and 31.  It was suggested to her that in  the subsequent application Ext.31 there was no retraction  of the earlier application, i.e., Ext.30.  She denied the  suggestion that her statement that she submitted Ext.31  at the instance of Nitin Sathe was incorrect.  She denied  the suggestion that it was not true that Nitin Sathe had  ever met her and offered that he would get her qualified if  she paid him Rs.1 lakh.  It was not true that after the  complaint Ext.30 Nitin Sathe never came to her and held  out no threat to her.  It was not true that her statement in  Ext.31 was not at the instance of Nitin Sathe.  She denied  the suggestion that Nitin Sathe never demanded  Rs.2,50,000/- from her and never promised to take her to  the respondent’s residence.  It was put to her that there  was no question of Nitin Sathe either meeting her or  calling her on telephone as deposed to by her.  In answer  she stated that in January, 2003 Sathe might not have  been in jail.  It was not true that he was in Jail from  October 2002 till 2005.  The fact of demand of  Rs.2,50,000/- by Nitin Sathe was not mentioned in her  first statement to ACB.  It was not true that she was  deposing incorrectly to wreck vengeance against the  respondent.  It was not true that her entire deposition was  incorrect and false.  It was not true that she did not fall  within the category of non-creamy layer.          34.             P.W. 13, Nayana S. Bhide deposed in her chief- examination that she had in her reply to the letter of the  Anti-Corruption Bureau revealed to the Investigating  Officer that the documents shown to her as detailed in the  Bureau’s letter dated 12.6.2003 had not been sent to  Respondent No. 3 by the M.P.S.C. officially and that those  letters could not have been kept in the official residence of  the respondent.  Those documents were seized by the  Investigating Officer on the day of arrest of the  respondent.  In her cross-examination, she admitted that  she was assisting Mrs. Seema Dhamdhere in her inquiries  initiated at the instance of the Commission into these  affairs.   Her statement came to be recorded seven or eight  times during the investigation by the Anti Corruption  Bureau.  There was no reference to the respondent in her  statement in the preliminary inquiry by Mrs. Dhamdhere,  who had recorded her statement in the preliminary  inquiry.  She could not remember whether the letter

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referred to in the chief-examination by her was sent after  the last of her seven or eight statements came to be  recorded by the ACB.   The statements in the chief- examination related to the documents found in the cabin  and the official residence of the respondent.  She admitted  that the gist of her chief-examination  was that the  respondent ought not to have kept the official documents  at her residence.  She admitted that in respect of the  family members of the members of the Commission who  wanted to compete in the examinations held by the  Commission, a file used to be kept.  It was true that the  file pertained to the son of Mr. Solunke the member and  the daughter of the respondent.  The roll numbers of both  of them came to be mentioned therein.  Both of them were  candidates for the preliminary examination for State Civil  Services for the year 2002.  The daughter of the  respondent Purva remained absent from the examination.   The complaint made by Mrs. Dhamdhere, based on which  the investigation was set afoot pertained to the 1999  examinations.  She stated that without reference to the  concerned document, she could not say whether the  Circular relating to relatives participating in the  examination was brought to the notice of the respondent.   It was true that there was a file pertaining to the  misbehaviour by Mr. Sarode.  She had only heard that it  pertained to a period before the events that gave rise to  the present investigation.  A public interest litigation was  filed in the High Court of Bombay seeking the relief that  Mrs. Dhamdhere should not be transferred out of the  Commission.  That was one relief sought along with other  reliefs.  She admitted that she used to accompany Mrs.  Dhamdhere to the court in connection with that public  interest litigation.  She and Mrs. Edwankar were the  observers for scanning of answer-sheets.  It did come out  as a result of the preliminary inquiry that there was no  virus and no defect in the computers.  But the computers  could not start functioning.  She admitted that the main  allegation in the preliminary inquiry was that the answer- sheets that were placed in the cupboard were removed  and replaced.  She denied the suggestion that she was  also a part of the conspiracy.  She denied the suggestion  that she was making false allegations for self preservation  and under the threat of Mr. Poojari and Mrs. Dhamdhere.   

35.             P.W. 3 Vaishali V. Sankhe, in her chief- examination, deposed that she had acted as a Pancha in  the house search of the respondent in the Nilambari  building.  She was in service of the Sales Tax department  since 1979.  The search was conducted in the presence of  the respondent and other members of her family.  At that  time, the documents, files relating to M.P.S.C. and  M.P.S.C. examinations were found in the house of the  respondent.  The same were seized and a panchanama  was drawn in her presence and it was signed by her and  Smt. Nayana Maruti Manyar.  She was in a position to  identify the seized documents.  In her cross-examination,  she reiterated that she had gone to the place of residence  of the respondent at the time of the search; that there was  no occasion for her to go there again.  After signing the  panchnama, she went back home via the office of Mr.  Poojari.  She had got written intimation for preparation of  the affidavit in chief-examination.  She produced the same  in court and the same was marked as Exhibit 9.  The  affidavit was drafted by an officer of the  M.P.S.C. She had  signed the same before a Notary and not in the office of

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the Commission.  She had no acquaintance with the  Notary.  It was true that Sales Tax people regularly go to  the ACB persons for investigation purposes.  She denied  the suggestion that she was deposing falsely on account of  her being cordial with ACB people.  36.             PW 2 was examined to speak of the search of the  residence of the respondent and the recovery of certain  papers from therein.  He was a Panch witness.                 PW 4 was another Panch witness to the search  conducted in the office of the respondent.  He proved that  Panchnama.   

37.             P.W. 6 Ashok Shankar Jadhav was also serving  with the Sales Tax department, gave evidence that he had  also signed the panchanama.  He spoke about the search  conducted in the office room of the respondent in the  M.P.S.C. office, about the seizure of documents and the  preparation of the panchanama.    

38.             P.W. 5 Dhanaji Shivaji Nalawade deposed that  he was a member of the Special Cell led by I.O. A.C.P S.B.  Pujari of the Anti Corruption Bureau, Mumbai and during  the course of the investigation, telephone print outs were  obtained from the Maharashtra Pubic Service Commission  and the Service Providers.  The print out regarding the  telephone of the respondent was obtained from the Service  Providers and not from the Maharashtra Public Service  Commission.  He had scrutinised the print outs.  In the  chief-examination, he has given the details about the  number of calls the respondent had made to Nitin Sathe,  to another accused Kailash Jadhav, to Riyaz Mohammed  Mulani.  He had stated that he scrutinised the said print  outs received from the Service Providers and on  scrutinising the same he prepared a chart dated  27.6.2003 in which he had mentioned that the respondent  had contacted accused Nitin Sathe from her office  telephone number 2670541 to his mobile 9822404228  eight times between the period 28.3.2002 to 20.5.2002.   Respondent had contacted another accused Kailash  Jadhav from her MPSC office number 2670541 to his  Barshi number 02184-26774 four times between  27.2.2002 to 22.3.2002. The scrutiny also revealed that  the respondent had contacted a candidate Riyaz  Mohammed Mulani on his mobile 9822196408 from her  MPSC telephone six times during the period 28.6.2001 to  5.3.2002.  She had also contacted the candidate’s father  Mohammed Mulani on his mobile 9823057035 fifty one  times between the period 19.5.2001 to 5.10.2002 from her  MPSC telephone number 2670541.  He is a suspect in this  case and also in custody on being arrested in the Telagi  Scam case.  He said that the respondent was in contact  with accused Nitin Sathe from her residence telephone  number 2820760 to his mobile number 9822404228  twenty times between the period 30.3.2002 to 20.5.2002.  Respondent was also in contact with accused/suspect  Mohammed Chand Mulani on his mobile 9822057035 and  9822196408 forty nine times between the period  13.12.2001 to 21.12.2001.   He said that on 30.6.2003, he  again scrutinised the mobile print out of the respondent  bearing number 9869066882 and found that she had  contacted accused Nitin Sathe four times between the  period 18.5.2002 to 27.5.2002 on mobile number  9822404228 and landline number 4362099 at Pune.  She  was also in contact on this mobile with the accused  Mohammed Mulani on his mobile 9822057035 and

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9822196408 between the period 18.2.2002 to 17.10.2002  for twenty two times.  He also stated that accused  Mohammed Chand Mulani was named as a suspect in the  present case and he was an accused arrested in the  Telagi’s Stamp Scam Case presently being investigated.   He further stated that the telephone contact of the  respondent with the accused and suspects revealed in the  investigation is in respect of the period of conspiracy and  the period of internal enquiry conducted by MPSC.  In his  cross-examination, he stated that the statement came to  be recorded during the investigation by the ACP, Poojari  and that statement related to the landline and mobile  telephone numbers of both the residence and the office of  the accused in the ACB case.  That was the only subject  covered therein.  He was attached to ACB from June 2001  to June 2005.  He admitted that he was a member of the  Special Cell headed by Poojari.  The investigation into this  matter was conducted by the said Cell.  He admitted that  in the original charge-sheet and three supplementary  chargesheets thereafter the respondent was shown as a  witness and not as an accused.  It was in the fifth charge- sheet submitted on 3.9.2003 the respondent came to be  shown as an accused.  It was true that his chief- examination  covers two points; one pertained to the  telephone contact between the respondent on the one side  and accused persons Kailash Jadhav, Mulani and Nitin  Sathe on the other.  He was not aware whether the  charges against the respondent vis-‘-vis Kailash Jadhav  and Mulani had been dropped by this Court.  He knew  that before she joined the Commission, the respondent  was serving the Indian Institute of Education at Pune.  He  did not know whether she was a joint director there.  He  did not know whether there was a labour problem there.   He did not know if at that time Mulani was the ACP  incharge of the police station within which that institution  fell. Nitin Sathe was an estate agent and an owner of a  video parlour at Pune.   He did carry out investigation in  respect of Nitin Sathe.  He perused his affidavit and stated  that as per the print out, the first telephone contact  between the respondent and Sathe was on 28.3.2003.

39.             P.W. 16, Seema Pradeep Dhamdhere, in her  chief-examination stated that she was the Secretary of the  M.P.S.C. from 1.2.2002 till date.  She had conducted the  preliminary enquiry regarding the irregularities and  illegalities in the examination 1999 on the basis of the two  applications received in the office of the Commission in  the month of April 2002.  In view of an order in that behalf  from the then Chairman Wani, she had started an enquiry  into the complaints alleging malpractices in the  recruitment examination.  The two applications were sent  by "Avedh Marg Satya Shodhan Samithi"  She had found  in the enquiry about the change of the answer-sheets.   Since the members agreed with her finding, they asked  her to complete the enquiry and put up a formal report.   She prepared a report with her recommendations which  was put up before the Commission on 27.5.2002.   Thereafter, the complaint was lodged.  It was not true that  it was the respondent who first pointed out the difference  in the answer-sheets. The respondent only confirmed her  findings in the informal meeting held on 21.5.2002.  It  was not true that the respondent had first taken the  decision of debarring 398 candidates.  Actually, it was her  recommendation to debar them.  Her decision was  confirmed by the Commission.  It was the routine office

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procedure to send the file concerned to the Junior Member  of the Commission first and lastly the file goes to the  Chairman.  That would not mean that the Junior Member  took the decision first.  As a matter of fact, the decision  was taken by the Commission collectively.  She had read  the confessional statement of Mr. Sarode and from that  she came to know that Sarode had visited the residence of  the respondent and Nitin Sathe was present at that time.   The respondent had never informed her or the office,  orally or in writing till date, that Sarode, the then  Controller of Examinations had at any time visited her  residence at Nilambari.  She had also not informed her or  the office that Sarode had at any time told her that the  case/enquiry into the malpractice in the examination  should not be given to the police for investigation and it  should be conducted as a Departmental action for which  he is ready to resign.  If the respondent had informed her  of that fact, she would have undertaken disciplinary  enquiry/action against Sarode. The respondent did not tell  her or the office that her daughter Poorva was going to  appear for the examination conducted by the Commission  in the year 2002. After the respondent as arrested, the  Anti-Corruption Bureau informed the then Acting  Chairman C.D. Singh about the arrest and then the Acting  Chairman recommended to the Governor for taking action  under Article 317 of the Constitution of India.  In her  cross-examination, she stated that she used to visit the  Supreme Court after the present proceedings commenced.   Initially, there were 22 charges proposed and a list of 32  witnesses proposed. She was asked questions about the  attempt to replace the answer-sheets and the taking of  keys of the cupboard by Mr.Sarode.  She stated that it was  true that as far as non-members were concerned, Sarode  was the only one to have been proceeded against and  prosecuted.  No departmental enquiry came to be initiated  against any staff member of the Commission except  Sarode. The present one was the first ever F.I.R. filed by  her. It was true that Sarode made a confessional  statement in November, 2002.  She had read it sometime  in December 2002 and the said statement was called for  by the Commission as per the orders of the Acting  Chairman Mr. Varma.  She did not remember Sarode  having mentioned in the confessional statement that he  tried to enlisting her support for the conspiracy, but she  would like to peruse the same to confirm as to what  precisely he said. The question of enlist her support for  the conspiracy did not arise.  He had not tried to enlist her  support in regard to the replacement of the answer-sheets  and the other aspects relating to the scam.  She did not  make any report in writing against Sarode with regard to  the fact of the five answer-sheets. She admitted that  daughter of the respondent Poorva did not actually appear  in the examination of the Commission.   She stated that it  was stated in Varma’s statement dated 15.2.2003 to the  ACB that Sarode had told the respondent that no further  steps be taken against him and that he was ready to  resign and that this fact was conveyed to him by the  respondent.  A communication from Joint Commissioner,  ACB was received by the Commission and the report was  made by Mr. Dhere Joint Commissioner in response to a  Government query with regard to the status of the case  against the respondent.   It was there in his report that  Nitin Sathe had denied his presence at the official  residence of the respondent on 25.4.2002 when Sarode  visited the respondent at her residence.  She had filed an

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affidavit before this Court on 30.7.2004.  She had  mentioned therein 10 stages of this scam and had briefly  mentioned as to what precisely had happened in each of  those stages.  She had also indicated there, the beginning  and the culmination thereof.  That period was from April  2000 to 16.3.2002.  Those details were mentioned in her  affidavit on the basis of the papers of the ACB that were  called by the Commission. That was after the reference  had reached this Court.  There was a move to transfer her  out of the Commission and against that a public interest  litigation was filed.  Some of the statements in the  preliminary enquiry were recorded by her after the  resolution of 27.5.2002 authorising her to file the F.I.R.  and certain others after the registration of the F.I.R. The  respondent was on leave from 27.5.2002 to 1.6.2002  suffixing and prefixing the 25th and 26th of May and 2nd  June.   It was true that the respondent attended the  meeting of 27.5.2002 cutting short her leave.  According to  her, this was since the Chairman told her to do so.  

40.                The evidence of P.W. 1 Ranjana C. Pathak  related to the attempt to rescan the answer sheets.  She  stated that the back up was available and she had  submitted an office note that result of the examination  would not be affected because of that.  Sarode had then  made a note stating that back-up data might be unreliable  and sought approval for rescanning of the answer-sheets.   The Secretary, Kulkarni had approved the suggestion and  the Chairman S.D. Karnik had approved the  recommendation for rescanning.  The respondent and  Wani were on tour and Karnik said that he would inform  them.  It was also ordered that the computer should be  kept in the custody of the Secretary.  It was seen from the  file that after the respondent returned from her tour, she  did not put any remarks in this record on the file.  In her  cross-examination, she admitted that the respondent was  the junior-most member of the Commission.  One G.C.  Varma was also a member of the Commission.  Mr. Varma  and the respondent were the members of the  Departmental Promotional Committee.  The examination  for the post under reference were covered by parts 2 and 3  of the concerned notification.  The Chairman Karnik and  Wani were the members of that Committee.  It was  specifically provided that the work pertaining to those  examinations should not be given to any other member.   The decision for rescanning came to be taken and it was  signed by the Chairman Dr. Karnik and members  Solunke, Wani and C.D. Singh.  The concerned note did  not bear the signature of the respondent.  There was  nothing to show that the said report even came to be  marked to the respondent by either the Chairman or any  other functionary of the Commission.  She did not know if  the respondent and Mr. Wani were at Aurangabad and Mr.  Singh was at Pune when the rescanning decision was  taken.  It was true that Wani and Singh endorsed her note  after they had returned from wherever they had gone in  connection with the Commision work.  It was for the office  to take the further follow up action upon her note  regarding rescanning.  She had also put her initials just  as the others who had dealt therewith.  It was true that  Aparna Dubey had appeared for the examination in the  year 2002 and she was interviewed in 2003. Her certificate  was out-dated.  She denied the suggestion that she was  herself a party to the conspiracy and so had managed to  put up the note in such a manner as to save her skin and

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at the same time create occasion for rescanning.  She had  not report to the higher ups that Sarode had taken away  from her the keys as just mentioned.   

41.             P.W. 11, D. Kalpande in the chief-examination   stated that he had given a statement before the Anti- Corruption Bureau regarding the malpractices in the  concerned examination.  He had met Nitin Sathe and  Sathe told him that to pass in Preliminary Examination he  had to spend Rs.50,000/- and for passing the Main  Examination and final selection, he will have to spend Rs.  3 lakhs.  Sathe also told him that he knew officers  working in M.P.S.C. and other big persons who can get the  job done.  In the cross-examination, it was brought out  that he had failed in the Preliminary examination.  He got  to meet NItin Sathe through one Sanjay Shirke.  He had  never made any payment actually to Sathe.  It was true  that he could not get through the final examination 1999.   In spite of his request, the Commission did not give him  opportunity of perusing the marks obtained as a result of  the rechecking.  He denied the suggestion that he had  never met Nitin Sathe.  He also denied the suggestion that  he was giving evidence at the instance of Poojari.

42.             P.W. 7, Chander Dev Singh, a retired Acting  Chairman of M.P.S.C. deposed in chief-examination  that  he was a member of the Commission between the period  21.9.1999 to 28.9.2003 and was working as the Acting  Chairman from 7.6.2003 till 29.9.2003.  He spoke of the  holding of the competitive examination 1999, the internal  enquiry headed by the Secretary of the Commission and  the lodging of a complaint to the Anti-Corruption Bureau  and to the arrest of Dr. Karnik, Wani and Sarode.  His  statement also came to be recorded by the Investigating  Officer during the investigation.  The Commission was  informed by the Anti-Corruption Bureau on 8.6.2003 by  letter that the respondent was arrested and produced  before the Special Judge on 9.6.2003 and was remanded  to Police custody till 16.6.2003.  On being informed of the  arrest of the respondent and of her being held in custody  for more than 48 hours, he in his capacity as the Acting  Chairman of the Commission wrote a letter to the  Governor of Maharashtra recommending action under  Article 317 of the Constitution of India, as it would not  have been in public interest for the respondent to continue  as the Member of the Commission after she was arrested  and remanded to police custody under a strong suspicion  of being involved in a criminal conspiracy relating to the  offence.  As per office order dated 5.5.1998, it was  mandatory to inform the Commission if the children of any  officer or staff working in the Commission are appearing  for any examination conducted by the Commission.  He  was not aware whether the respondent informed the  Commission about her daughter Poorva having applied for  the State Service 2002 Examination.  The Secretary of the  Commission who conducted the enquiry had confirmed  that there were malpractices in the Examination 1999 as  alleged.  The Commission had thereupon directed her to  lodge the F.I.R. with the Anti Corruption Bureau.  It was  not correct to say that the respondent was the first to  detect the malpractices/change in answer-sheet etc. of the  aforesaid examination.  In his cross-examination, it was  brought out that he had accorded sanction to prosecute  Sarode after he gone through the relevant papers and  come to the conclusion that there was sufficient material

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to accord sanction to prosecute Sarode.  Sarode was at  that time acting as Controller of Examinations and Deputy  Secretary of the Commission.  Each member had an  independent cabin and the members often visited one  another’s cabin in the office of the Commission.  In the  course of his visit, to the cabin of the respondent he had  used her telephone. It was true that there were two parts  of the conspiracy in question.  The first was regarding  permitting all those who failed in the preliminary  examination to take the main examination.  The second  was, in spite of the back up being available, the allowing  of rescanning.  He was present in the meeting held on  29.11.2000 when the decision to permit those who failed  the preliminary examination to take the main examination  was taken.  The other members were the Chairman, Dr.  Karnik,   Wani and Varma.  It was a unanimous decision.  The Chairman had brought to their notice that there were  certain mistakes in the question papers of the preliminary  examination and also indicated the precedent of 1991  when re-examination was held for all the candidates.   He  had not raised any objection regarding the unsigned note  that was circulated regarding the 1991 re-examination.   He had also not asked for the papers recording that  decision for perusal.  There were 27 mistakes in the  preliminary examination paper.  He could not say if there  were in all 150 questions in that paper.  But from the  minutes, it would appear that there would be 150  questions.  This was the only occasion in his tenure of  four years as a member that even those candidates who  failed in the preliminary examination were permitted to  take the main examination.  This statement was recorded  by the Anti-Corruption Bureau during investigation on  three occasions.  He was asked about the demonstration,  the public interest litigation and the order of preliminary  enquiry in his cross-examination.  Mrs. Damdhere had  submitted a preliminary report of her inquiry on  21.5.2002 and submitted her final report on 27.5.2002.    He was not aware of whether in the year 2000, there was  an attempt to tamper with the computer of the  Commission and to remove the hard disk and whether  about this incident, Mr. Sarode, the Deputy Secretary of  that Section, had ever submitted a report.  The matter was  incharge of the examination committee and may be, it  never came up before him again. The Chairman and  normally the senior most member, constituted the  examination committee.  The genuine answer-sheets and  the so called bogus answer-sheets were produced by  Damdhere, the Secretary, before the members of the  Commission.  Both type of answer-sheets were perused by  the members.  The respondent gave her views as the other  members did.  He could not say if the views of the  respondent were restricted to the quality of papers of these  answer-sheets.  It was possible that the respondent had  made an endorsement on the file relating to 398  candidates that the answer-sheets of not only those who  had passed out but even those who had failed should be  checked. He was the Acting Chairman when the  respondent was arrested.  He had written to the Governor  for considering action under Article 317 of the  Constitution of India.  While he sent his communication to  the Governor, he annexed two letters received from the  Anti-Corruption Bureau which disclosed the arrest and  detention of the respondent for more than 48 hours in  police custody under C.R. 33/2002.  That fact was not  mentioned in his letter itself, but it was there in the

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annexure.  According to him a member of the Commission  also was a Government servant because the whole time of  the member is for the Commission and they get pay and  perks from the Commission.  It was true that in none of  his three statements to the Anti-Corruption Bureau, he  had mentioned anything about Poorva, the daughter of the  respondent.  He had never verified whether Poorva did or  did not appear ever in the examination of the Commission.   It was not true that he had made a reference to Poorva in  his affidavit only at the instance of ACP of the Anti- Corruption Bureau.  He was not involved in the decision  making process regarding rescanning.  He agreed with the  passage in his statement earlier recorded by the Anti- Corruption Bureau on 17.7.2002.  He was admitted in  the  hospital in December 2002, but he could not remember  the date.  He admitted that he did not know the result of  the enquiry held by Sarode with regard to the tampering of  the computer.  He denied the suggestion that the Anti- Corruption Bureau threatened him that unless he toed  their line he would himself be implicated as an accused  and therefore he agreed to become a witness. He denied  the suggestion that he wrote to the governor on 16.3.2003  without any resolution of the Commission and without  any material because he was himself involved in the scam.  

43.             P.W. 8 Solunke, who also joined the Commission  as a member on the same day as the respondent joined it,  in his chief-examination, stated about the internal enquiry  conducted by Seema Dhamdhere, the registration of the  First Information Report, the arrest of the respondent and  her remand to judicial custody and his view that it would  not have been in public interest for the respondent to be  continued as a member of the Commission.  He stated  that he was residing in the same building Nilambari and  he was residing in the third floor.  He stated that the  respondent had not informed him about the visit of Sarode  to her flat.  There was a visitors book maintained in the  building by the Security Guard, but it was not made  mandatory for everyone to make an entry therein.   Sometimes, even the visitors entered the building along  with the residents.   The Investigating Officer during the  course of investigation had called for the telephone details  of Dr. Karnik, the Chairman, Wani and of himself and of  the respondent.  The information relating to himself, Dr.  Karnik, Wani and Sarode was sent to the Investigating  Officer by the then Acting Chairman G.C. Varma.  But the  information relating to the respondent was withheld.   It  was later revealed that the telephone printout relating to  the respondent was not sent as that would have revealed  her contact with the arrested accused Nitin Sathe and  Kailash Jadhav.  His son had appeared in an examination  conducted by the Commission and he had informed the  Commission that his son was appearing.  The respondent  never informed the Commission that her daughter Poorva  had applied for appearing in the Examination 2002.  It  was mandatory to inform such a fact to the Commission.   The respondent had never informed him that Aparna  Dube had met her in her office in the Commission and  had given her an application retracting her earlier  application complaining about the malpractices committed  in the examination.  While he was functioning as a  member of the Commission, the respondent never  informed him or the Commission that she was intending  to sell a property in Pune and hence, she was in contact  with Nitin Sathe who was an arrested accused in the case

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and who was also an accused in an earlier case relating to  the Public Service Commission Examination of 1996.  In  his cross-examination, the attempt was to show that if a  reference was to be made against the respondent under  Article 317 (1) of the Constitution of India in respect of her  alleged misbehaviour, there existed an equally strong case  against the witness who was also a member, for making a  reference under Article 317 of the Constitution of India.  It  was brought out that he had no personal knowledge about  the conduct of the respondent.  It was also brought out  that he had joined the Public Service Commission before  the respondent even without resigning his position as  Principal of an Institution and he had faxed his  resignation and his resignation was accepted  telephonically.  It was also brought out that he was a  party to the decision for rescanning the answer-sheets.  It  was also brought out that one Prabhakar Jaywant More,  who was the friend of his son had appeared in an  examination conducted by the Commission and in his  application, he had given the residential address of the  witness.  The witness stated that he was not aware of that  fact; that he admitted that it was seen that More had given  his address.  He agreed that the Circular of 1998  regarding disclosure pertained to the staff and officers of  the Commission, though he asserted that the fact that  Poorva was appearing for the examination should have  been intimated to the Commission by the respondent.   He  was not aware whether Poorva actually appeared in the  examination or not.  It was then brought out more  disturbingly that one Vezre who was also an accused in  the scam and arrested, had been sent to him by Dr.  Karnik after Karnik had gone to the U.P.S.C. as a member.   He had met with Vezre when Vezre came to call on him at  Nilambari.  There was no entry regarding the Vezre visit in  the register because Vezre did not come up to his flat.  He  had come down to meet Vezre.  That was because he did  not know the background of Vezre. Dr. Karnik had not  told him anything about Vezre’s background.  He had not  informed to the respondent about his meeting with Vezre  or that Vezre had come to see him.  He did not know who  Vezre was, but later came to know that he was an  employee of the Mantralaya.  He came to know later that  Vezre was involved in such matters of the Commission.   He admitted that Vezre was an accused in the scam in  question and he was arrested.  Vezre had told him that he  had in fact come to help the witness.  He told the witness  that he had a message from Karnik that P.W. 8 should  accompany Vezre to a Minister and that Minister would  get P.W. 8 appointed as a Chairman of the Commission.   The witness claimed that he was not interested in the offer  and chided Vezre for his action.  It was true that at  present he was next to the Chairman in seniority.  His  term would expire on 7.5.2007, but if he got appointed as  the Chairman, he would get another six years.  He was not  keen for the post but in case he got it, he would accept it.  He would be happy to do it.  He had not informed the  Commission that Vezre had come to him as described by  him above and of the other persons he had seen as being  sent by Dr. Karnik.  Vezre had called him back again the  same day two hours after meeting him. He wanted to  know whether he had a change of mind and what he  should report to Karnik.  The witness informed him that  his views had not undergone any change; that the witness  himself would inform Karnik accordingly.  He accordingly  called up Karnik to inform him.  It was true that at the

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time this incident occurred, the Commission was headed  by the Acting Chairman Wani.  The reason why he still  called up Karnik was that he did not like such an  incident.  He came to know that a similar scam had taken  place in the Commission in 1996 in which four persons,  namely, Patil, Sanas, Kelkar and Vezre were accused.  It  was true that in his first statement to the Anti Corruption  Bureau, the Vezre episode was not disclosed by him.  He  had been asked by ACP Poojari whether he knew Vezre  and he had told Poojari that he knew Dr. Karnik, Wani  and Sarode and he did not know any other accused.  But  before that day, Vezre had already been arrested.   It was  true that Poojari had showed the photographs of Vezre to  the witness and asked him if the witness knew him.  It  was true that after Poojari confronted the witness with the  photographs, the witness identified Vezre and related the  above incident.  It was true that when the bogus answer- sheets and genuine answer-sheets were brought before the  members, the respondent opined about the quality of the  paper being different from the genuine ones.  He did not  know whether Aparna Dubey actually met the respondent  or not.  He had not mentioned Aparna Dubey in any of the  four statements made by him during the investigation.  He  was never an estate agent.   He was not an expert in  property matters.  People did not consult him about such  matters.  Before he made his last statement to the Anti- Corruption Bureau, he was given for reading the  confessional statement of Sarode.  Then questions were  put him about 398 candidates against whom action was  taken.  It was put to him that he was himself a part of the  conspiracy and that he had signed the rescanning file.  He  denied it.  He denied that it was in that connection that  Dr. Karnik had sent Vezre with the proposal put forward  by Vezre. He denied that he was in regular contact with  Vezre.  He denied that he was all along worried that the  respondent might become the Chairperson.     

44.             The respondent, in her evidence, made a  strenuous attempt to say that her frequent contacting of  Nitin Sathe over the telephone was in connection with the  sale of her property in Pune and on the footing that Nitin  Sathe was a broker dealing in real estate.  Her evidence  that she had gone to the Talathi  (Lowest Revenue Office)  in Pune a number of times after the death of her mother  for getting the records changed to her name and someone  there suggested the name of Sathe as the person who  would help her to sell the property, reads rather thin in  the circumstances of the case and on a reading of her  evidence as a whole in the light of her pleadings.  It is a  case that she was trying to sell a property in Pune over  which there were some restrictions regarding  construction.  According to her own showing she had  never met Nitin Sathe earlier, according to her. No one  had introduced Nitin Sathe to her.  She could not  remember, who at the Talathi suggested the name of Nitin  Sathe to her.  She wants the court to believe that merely  on the suggestion of someone at Talathi who had given her  the phone number of Nitin Sathe, she contacted him and  told him that she had a piece of land to sell.  She had  never visited the office of Nitin Sathe, according to her,  and she did not know his office.  She could not recollect  the name of any prospective buyer suggested by Nitin  Sathe.  She had not entered into any written agreement  with regard to the brokerage payable with Nitin Sathe.   She had only enquired about a buyer and the expected

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price.  When she was asked whether she had made any  enquiry about the antecedents of Nitin Sathe, his  credibility, experience and reputation, her answer was  that she was much interested in his position as an Estate  Agent in that area.  When the question was persisted in  whether she had discussed with anyone about the  credibility, reliability, etc. of Nitin Sathe, her rather  evasive answer was it was only at the initial stage.  When  the question was persisted in, she answered that since  there was no finalisation of any deal, there was hardly any  chance for having assessment of the credibility, reliability  and reputation of Nitin Sathe.  It was put to her that her  story that Nitin Sathe was suggested by someone at the  Talathi to her was not stated in any of her affidavits.  She  denied the same and stated that whatever she felt was  necessary, she had incorporated in the affidavits.    When it was suggested to her that someone at the Talathi  office naming Mr. Sathe as a person who could help her  was being disclosed by her for the first time in her cross- examination,  she answered that that was because she  was being asked the question for the first time in the  court.  She stated that she did not know the names of any  of the candidates out of the 24 candidates referred to in  page number 21 of her affidavit dated 4.10.2004 marked  as Exhibit R-2(a).  Out of the 11 candidates mentioned  therein, she had interviewed only 6 and out of the 6  interviewed by her, she had given below average marks to  5 candidates.  It was brought out in her cross-examination  that she was acquainted with one Mohan Chand Moolani  who, according to her, was the Inspector of Police within  the jurisdiction of which her prior employer, the Indian  Institute of Education was situated.  Therefore, around  1995-96, she came to know him as Inspector of Police of  that police station.  There was a charge against Moolani  also but the said charge was dropped by this Court.  It  was brought out that Moolani was also involved in the  Telgi scam as an accused.  No one from her family had  contacted Nitin Sathe with regard to any property.  But  her sister-in-law Neha Joshi, whenever she came to the  house of the respondent at Bombay, used to contact Nitin  Sathe over her telephone.  She had not shown the location  of her plot to Nitin Sathe.  She had not enquired of any  transaction put through earlier by Nitin Sathe.  She had  only asked Nitin Sathe.  He did not tell her anything about  any specific transaction.  He generally told her that some  properties in that area were sold through him.  She had  not made any further enquiry regarding that.  She did not  know anything about the name under which Nitin Sathe  carried on his business.  She had sold the property on her  own after her being enlarged on bail. When she sold the  property, Nitin Sathe was in jail.  The property was sold by  her directly without the assistance of any broker.  She had  not informed the Nitin Sathe about the sale of the  property.  Since he was in jail, there was no question of  telling him anything.  Nitin Sathe used to convey the  information to her over the telephone.  She used to read  the daily newspaper ’Sakal’.  She did not recollect whether  she had read anything in the newspaper about the 1996  examination scandal relating to M.P.S.C., before she  joined the Commission.  It was put to her that in  connection with exam paper leakage scandal of the year  1996 concerning the M.P.S.C., it was published in all  newspapers including Sakal, that Nitin Sathe was the  prime culprit.  Her answer was she did not come across  any such news.  She was always on tour during that

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period.  She did not know whether Nitin Sathe was visiting  the Circuit House, Pune, when the interviews for 1999  examination were going on.  She denied the suggestion  that Nitin Sathe used to visit the Circuit House, Pune,  when the interviews were going on.  She denied the  suggestion that she knew Nitin Sathe and his criminal  antecedents much before she joined the Commission.    She denied the suggestion that Nitin Sathe was not a real  estate broker and that he was only a person deputed by  her for contacting the candidates and for collecting money  from them for her benefit for doing favours in the  examination. She pointed out that Nalwade P.W. 5, a  Police Officer had also admitted that Nitin Sathe was a  real estate agent.  She denied the suggestion that the story  of sale of land through Nitin Sathe put forward by her was  concocted a story put forward as an after thought for the  purpose of giving an explanation to the communications  which had taken place at length between her and Nitin  Sathe.  She denied the suggestion that Nitin Sathe was on  visiting terms with her at her residence as well as in the  Circuit House whenever she resided there.  She did not  remember the date on which she made the last phone call  to Nitin Sathe.  It was put to her that when the sealed  computers of the Commission were opened for  examination, she ceased to have communication with  Nitin Sathe.  She answered that she will have to see the  records to answer that question.  Nitin Sathe never visited  her residence at any time.  She saw Nitin Sathe for the  first time in the court after her arrest.  She denied the  suggestion that it was because Nitin Sathe used to  accompany her to her residence, that his name was not  entered in the visitors’ book at Nilambari.  She did not  know who introduced Nitin Sathe to her sister-in-law  Neha Joshi.  She did not know the name of the person  who had given the phone numbers of Nitin Sathe to Neha  Joshi. To a question whether she asked Neha Joshi about  the name of the person who had given her the telephone  number of Nitin Sathe, she answered that it was the  personal matter of Neha Joshi.  She did not know the  phone number in which Neha Joshi used to contact Nitin  Sathe.  But she knew that whenever Neha Joshi came to  her residence, she used to contact Nitin Sathe through her  telephone.   She denied the suggestion that she used to  dial the number of Nitin Sathe and handover the same to  Neha Joshi to speak to Nitin Sathe.  She denied the  suggestion that it was she who had introduced Nitin Sathe  to her sister-in-law Neha Joshi and that she supplied the  phone number of Nitin Sathe to Neha Joshi. She denied  the suggestion that there was a meeting at her residence  of herself, Nitin Sathe and Sarode and that at that time,  she had told Sarode that the names of 24 candidates  supplied by Nitin Sathe were her candidates and that  Sarode had to do something to get them passed. She also  denied the suggestion that at the meeting on 25.4.2002,  she had told Sarode to work for Nitin Sathe in future for  mutual benefit.  She denied the suggestion that she had  again called Sarode to her house on 1.5.2002 and told  Sarode that Sarode should not divulge the name of Nitin  Sathe in the enquiry.  She denied the suggestion that she  had invited Sarode to her house only to introduce Nitin  Sathe and discussed the modality of the conspiracy.  She  denied the suggestion that at her instance Nitin Sathe  visited Aparna Dubey and Sandeep Shinde and threatened  and pressurised them to withdraw the complaint they had  made.  She denied the suggestion that it was on her

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instructions that Nitin Sathe persuaded Aparna Dubey  and Sandeep Shinde to make allegations against the  Secretary of the Commission.  She denied the suggestion  that Nitin Sathe had demanded illegal gratification of  Rs.2,50,000/- from Aparna Dubey on the instructions of  the respondent.  She did not know whether her husband  Joshi knew Nitin Sathe or not.  She admitted that she  knew Mohd. Moolani and his son Riaz Chand Moolani.  She denied the suggestion that Mohd. Moolani had helped  her for the sale of her plot at Pune.  The Chairman of the  Indian Institute of Education had called Mohd. Moolani to  help the Institution and to that extent assisted her in  some legal matters relating to the institution.  She could  not remember the number of times Mohd. Moolani visited  her office.  It was correct that Riaz Chand Moolani was a  candidate in the examination conducted by the  Commission.  However, he never passed in any of the  examinations.  She denied that she had any conversation  with Riaz Chand Moolani, but she admitted that she was  having conversation with Mohd. Moolani even prior to her  joining as a member of the Commission.  She admitted  that she came to know from the newspapers that Mohd.  Moolani was arrested in connection with the Telgi Stamp  Paper scam.  She admitted that P.W. 12 Ohwal was her  peon and that the peon used to stand outside the  interview room.  To her knowledge, there was no visitor to  see her during the time of the interviews.  She had no  occasion to notice any misbehaviour on the part of the  P.W. 12 Ohwal.  It was true that P.W. 12 had accompanied  her to Pune for the interview.   It was brought out that she  knew Dr. Karnik earlier even before she joined the  Commission.  When she joined the Indian Institute of  Education in the year 1988, Dr. Karnik was a trustee of  that institute.  Karnik was thereafter Vice-Chancellor of  Bombay University for five years.  Thereafter he joined as  Chairman of the Commission.  She denied the suggestion  that it was only after Dr. Karnik took over as Chairman,  the process for appointing her as the member of the  Commission was started.  She stated that she was  proposed by Dr. Banu Coyaji, who was a trustee of the  Indian Institute of Education and who was the winner of  Megassesey Award. She stated that no confidential  documents were seized from her house.  She pointed out  that the charge in that regard had been dropped by this  Court.  She admitted that the Xerox copy of the paper of  Aparna Dubey was seized from her residence.  She had  declined to conduct the interview of Aparna Dubey as  Aparna had cheated the Commission.  She had informed  the Commission about that.  She had kept the Xerox copy  for her protection.  She did not remember the approximate  date when Aparna Dubey was interviewed.  She pleaded  ignorance that it was her son Ajinkya who had brought  the keys of the cupboard of her office to the police who  wanted to open the cupboard during the search of her  office.  She stated that she was asked to sit in one room,  so she did not know what happened in her room.  In  answer to the question that it was her son Ajinkya who  had brought the keys to open the cupboard and it was  with those keys that the cupboard was opened, her  answer was that she did not remember.  She admitted  that her daughter poorva had applied from two places for  the civil services examination conducted in the year 2002.   There was no bar from applying from two centres.   However, Poorva had not appeared in the examination.   She denied that it was misconduct on her part for not

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having reported to the Commission that her daughter was  to be a candidate for the examination 2002.  She took up  the position that the circular issued in that behalf was not  applicable to the members of the Commission, but it was  only applicable to the officers and staff.  She denied the  suggestion that Poorva did not appear in the examination  only because Sarode expressed his inability to help her  daughter.  She asserted that she had never discussed any  such matter with Sarode.  She stated that everyone in the  Commission knew that Sarode was a womanizer.  She also  knew it.  When she was asked, whether she stopped  Sarode from entering into her house when she was aware  of the character and bad reputation of Sarode, her answer  was she did not invite Sarode to her house.  He came to  her house on his own.  At that time, she was taking a  bath.  Her sweeper opened the door for Sarode.  She  admitted that she had not stated in any of her affidavits  that the door was opened by her servant and not by her.   Sarode was there in her house for approximately 10 to 15  minutes.  He had visited her residence only once.  That  was on 25.4.2002.  When the Anti-Corruption Bureau   showed her the visitors book, she found that the entry  with regard to the visit of Sarode was there in the visitors  book.  She denied the suggestion that Sarode had visited  her at her house on 1.5.2002.  He had visited her only  once at her house on 25.4.2002 and when Sarode visited  her house nobody other than Sarode and herself were  there in the house.  She stated that in the last week of  May 2002, Sarode met her in her office and requested her  not to lodge a complaint with the police.  Sarode further  stated that Sarode was prepared to resign.  She replied to  Sarode that action would be taken against Sarode as per  law.  To a question, in what context Sarode had told her  as she had stated just then, her answer was, "He just  came to my chamber and told me like that. Complaints  were being filed again and again by different persons  showing the involvement of Mr. Sarode at that time.  The  preliminary enquiry was also ordered before that time (A)."   She stated that she did not know what was in the mind of  Mr. Sarode when Sarode had admitted his guilt.  It was  put to her that Sarode had admitted his guilt when he had  requested her not to report the matter to the police.  She  could not member the approximate date in the month of  May 2002 on which Sarode visited her office.  She had  asked Sarode why he had made the request but she had  directly told Sarode that action would be taken in  accordance with law.  To a question whether she informed  the head of the Commission about the request of Sarode,  her answer was that Mr. Varma was heading the  preliminary enquiry, being an ex-Director General of  Police.  Therefore she informed Varma orally about the  request of Sarode.  She agreed that it was Seema  Dhamdhare who was conducting the preliminary enquiry,  but she stated that Varma was guiding the preliminary  enquiry as per the request of the Chairman.   She denied  the suggestion that it was untrue to say that Varma was  guiding the enquiry on the request of the Chairman.  To  her knowledge, the case was registered by the Anti- Corruption Bureau as per the First Information Report  against unknown persons.  If Seema Dhamdhere had  made a proper enquiry, the case would have been  registered against some specific persons.  Since she had  informed Varma about the request of Sarode, she thought  that that was sufficient and she did not pass on that  information to anybodyelse.  She denied the suggestion

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that she had never informed about the visit of Sarode to  her office either to Varma or to any other person.  She  asserted that Vezre who was the main culprit in the scam  used to visit P.W. 8 Solunke, as admitted by Solunke in  his cross-examination.  But Solunke did not inform any  body of that visit.  Sarode had approached Seema  Dhamdhere also, but Seema had also not informed  anybody about it.  She denied the suggestion that she had  not passed on the information regarding the suggestion of  Sarode, because she was also a conspirator along with  Sarode, Varma, Nitin Sathe, Dr. Karnik and Wani.  She  denied the suggestion that on 12.6.2002 or so, Aparna  Dubey had submitted six copies of one retracted  complaint to her. She asserted that Aparna Dubey never  met her.  One copy of the complaint was on her table.   Immediately, she signed it and forwarded the same to the  Chairman.  She came to know of the complaints filed by  Aparna Dubey and Sandeep Shinde on 24.2.2002 only  from the charge-sheet.   She denied the suggestion that  Aparna Dubey did not accede to her request to pay money  and hence she kept her papers with her.  She tried to  assert that other people could also use her telephone kept  in her cabin in the Commission Office and tried to suggest  that they might have contacted Sthe, Moolani, Jadhav etc. 45.             It is in the light of above evidence that the  answers to the charges framed have to be found.  46.             Charge No. 1                  There is evidence to show that on 25.4.2002,  P.W. 15 Sarode visited the respondent at her flat.  The  visit is recorded in the visitors’ book kept at Nilambari, the  building in which the flat is situate.  The respondent has  also admitted this visit.  It is the charge that at this  meeting, Nitin Sathe, a person who was involved in the  1996 examination scam and who was also arrested in  connection with the 1999 examination scam was also  present.  The presence of Nitin Sathe is sought to be  proved by the evidence of P.W. 15 Sarode, supported by  his previous statement, Exhibit 53, the confession made  before P.W. 14 and also by way of inference from the  number of telephone calls the respondent had made to  Nitin Sathe from her residential telephone, office telephone  and her mobile phone.  The respondent has admitted that  she had contacted Nitin Sathe on a few occasions, but she  has pretended ignorance of the fact that Nitin Sathe was  an accused in the 1996 examination scam of M.P.S.C. and  that the said fact was carried by various newspapers.  Though the respondent admitted that she read a  newspaper regularly, she took the stand that she did not  remember having read about Nitin Sathe and his  involvement in the 1996 scam.  The number of phone calls  made by her to Nitin Sathe during the relevant time is  sought to be justified by the respondent by stating that  Nitin Sathe was a land broker; that she and her mother  jointly purchased a plot in Pune, which she wanted to sell  after the death of her mother and that she had contacted  Nitin Sathe for the purpose of helping her to sell that plot  of land.  According to her, nobody introduced Nitin Sathe  to her, but someone at the Talathi, to which she was  regularly going after the death of her mother for getting  the land records changed, had told her about Nitin Sathe  and given her his phone number.  She could not  remember the person who suggested Nitin Sathe to her.   The respondent is an educated person.  She had held a  responsible position in the Indian Institute of Education  from where she had come to the Public Service

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Commission as a Member.  It is difficult to believe her  story that she had no occasion to verify the antecedents of  Nitin Sathe before getting in touch with him for the  purpose of the sale of her plot of land, and that she had  simply contacted him on the basis of some unknown at  the Talathi telling her about him and giving her his  telephone number.  Going through her evidence which we  have summarised earlier, it is not possible to believe her  story that she was not aware of the antecedents of Nitin  Sathe and that she was trying to get her plot of land sold  through him without even having met him once and even  without having gone to his office at any time or even  without giving him at least the copies of the documents of  title or sketch of the property to be sold.  After all, in the  normal course, a person takes care to ensure that the  person she seeks the help of for selling an item of property  is a reliable person and has a good record as a broker  before entrusting such a person with the task of finding  out a purchaser for his or her own property.  It is difficult  to imagine that the respondent did not act as a prudent  person in this matter.  She relied upon the evidence of  P.W. 5 to show that Nitin Sathe was an estate broker.   P.W. 5 has stated in cross-examination  that Nitin Sathe  was an estate agent.  From that alone we cannot infer that  his activities were confined only to land broking.  The  evidence indicates that he was involved in other activities,  particularly relating to the qualifying examination  conducted by M.P.S.C.  On the basis of the evidence read  as a whole and in the circumstances, we have no  hesitation in discountenancing the version of the  respondent that she was not aware of the antecedents of  Nitin Sathe and that she had never met him even though  she had entrusted him with the task of finding out a  purchaser for her property in Pune.  The fact that she was  also contacting dubious characters who were subject to  prosecution like Moolani (a large number of times) and  Jadhav who was running a coaching institute for M.P.S.C.  Examinations also suggests that her innocent version  about contacting Nitin Sathe cannot be accepted.  It is  also difficult to imagine that as a woman of the world, who  had held a responsible position, she was not aware of the  antecedents of Nitin Sathe and his involvement in the  1996 examination scam especially after she had become a  member of the Commission in the year 2001.   

47.             There is also the evidence of P.W. 9 Aparna  Dubey that she was approached by Nitin Sathe who  claimed that he was close to the respondent, that he had  threatened and coerced her to retract a complaint she had  made regarding the conduct of the 1999 examination and  the threat had been held out to her and her friend by Nitin  Sathe presumably at the instance of the respondent.  The  attempt in the cross-examination was to show that Aparna  Dubey was an unreliable person by suggesting that she  had  produced an inaccurate creamy layer certificate  which was also outdated and, that she had also produced  an experience certificate which was obtained from her  father and it was a false one.  Some attempt was also  made to show the confusion about the address at which  she was residing.  All the same, the fact remains that  Aparna Dubey originally made a complaint and then gave  a second statement to the Commission, in essence  withdrawing her earlier complaint which was one of the  items that triggered an internal enquiry conducted by the  Secretary to the Commission, Seema Dhamdhere and a

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copy of the second representation with the seal of the  Commission was found in the residential premises of the  respondent and it was recovered from her residence on a  search.

48.             There is also the evidence of P.W. 10 Jyoti Desai  that Nitin Sathe had asked for money to get her selected  in the examination and Nitin Sathe had claimed that he  had the necessary contacts in the Commission.  She has  deposed that Nitin Sathe had approached her and told her  that he could get her selected in the interview and final  selection if she paid Rs.1,00,000/- to Rs.3,00,000/- as per  the preference for the particular post.  He had told her  that he had a necessary contacts and that if she did not  believe him he would take her to the residence of  respondent No. 3 who was at that time staying in Pune  and who according to him looked after the money matters  for the interview and selection of candidates.  He also told  her that she could personally talk to respondent No. 3.  Of  course, it is the evidence of P.W. 10 that she refused the  proposal since she refused to pay the amount demanded  by Nitin Sathe on behalf of the respondent.  On reading  about the scam in the newspaper she had approached the  High Court with an application addressed to the Chief  Justice of the High court, she had also approached the  Anti-Corruption Bureau where her statement was  recorded.  In her cross-examination, it had brought out  that she had not secured the qualifying marks in the  examination.  The difference in her address was  emphasized and it was suggested that she could not have  met Nitin Sathe.  She denied that she was in link with  Aparna Dubey and one Kalpande and the Investigating  Officer Poojari, P.W.17 in trying to incriminate respondent  No. 3.

49.             P.W. 12 Ohwal, a Peon in the office of the  Commission who was promoted as a Naik was admittedly  attached to the respondent as a Peon.  He had  accompanied her to Pune and to other centres where she  held the interview.  He has given evidence that at the time  of interviews of the 1999 examination when he was at the  circuit house at Pune along with respondent No. 3, Nitin  Sathe and one Kailash Jadhav used to come to the  interview centre.  In the year 2002, he had received a call  at the office of respondent No. 3 from Nitin Sathe who  wanted to get in touch with the respondent and he had  told Nitin Sathe that respondent No. 3 was busy in the  meeting.  Nitin Sathe had then told him to convey the  information of his phone called to respondent No. 3.  In  his cross-examination, it was brought out that he  continued in his position in the service of the Commission.   He was attached to the establishment section.  His  statement was recorded by ACP and his statement was  recorded for the purpose of this reference.  He re-asserted  that he did receive a telephone call asking him to inform  respondent No. 3 that the caller had called. He could not  remember the date, day, time and the year but he was  sure that such a telephone call was received.   

50.             P.W. 17 was the investigating officer into the  crime connected with the scandal.  The different stages of  the conspiracy were unfolded by him.  He admitted that  originally, the respondent was shown as a witness in the  charge sheet and the supplemental charge sheets.   However, later on, getting evidence of the respondent

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having been a part of the conspiracy, she came to be  arrested.  Sanction for prosecution had been accorded  both by the Governor and by the President.  The  respondent was arrayed as accused No. 22.  Her  residential flat was searched prior to her arrest.  The  search had resulted in recovery of confidential M.P.S.C.  documents including certain papers relating to a  candidate Aparna Dubey.  During the investigation, it was  revealed that respondent No. 3 was in regular contact with  accused persons like Nitin Sathe, who had also been  earlier arrested in connection with the crime relating to  the 1996 scandal.  It was also revealed that respondent  No. 3 was in contact with other accused persons like  Kailash Pandurang Jadhav who was conducting classes at  Barshi, Solapur for competitive examinations conducted  by the Commission.  It was found that she had contacted  Jadhav from her telephone.  Jadhav had been arrested in  connection with the crime.  It was also found that the  respondent was in regular contact with Mohd. Chand  Moolani.  He was also the father of a candidate Riaz  Moolani.  Mohd. Chand Moolani was an accused in the  notorious Telgi Stamp Paper scam. The respondent was  also in contact with the candidate Riaz Moolani.  He also  gave evidence about the confession made by Sarode P.W.  15 and spoke about the confessional statement regarding  the involvement of respondent No. 3 being corroborated by  the entry made in the visitors’ book maintained at the  residence of respondent No. 3 at Nilambari building.  He  also gave evidence that the telephone printout received  from service providers had revealed that respondent No. 3  had contacted Nitin Sathe 8 times between 28.3.2002 to  25.9.2002 from her office phone and 20 times through her  residential phone between 30.3.2002 to 20.5.2002.  From  her mobile, she had contacted Nitin Sathe four times  between 18.5.2002 to 27.5.2002.  He also spoke about the  recording of the statement of Jyoti Desai and Aparna  Dubey.  He had also recorded the statement of others like  that of Solunke P.W. 8 and Ohwal P.W. 12.  In his cross- examination, it was brought out that the respondent was  originally shown as a witness and only later on shown as  an accused.  It was suggested to him that he had not  made a proper enquiry with the driver and the  maidservant of the respondent.  It was brought out that he  had recorded the statements of more than 2000  candidates in respect of this crime.  It was brought out  that there were charges against him on various counts,  but he asserted that no substance was found in any of  them.  Though originally, there were 22 charges proposed  to this Court, only four charges had been framed  ultimately.  It was attempted to be suggested that his  evidence in this Court was motivated.   He denied the  suggestion that the confession Exhibit 53 made by Sarode  was inspired by him.  He also denied that the confessional  statement was made by P.W. 15 Sarode at his instance.   The Panch witnesses proved the recovery and some of the  papers from the residence of the respondent and from her  cabin in the Commission office.  

51.             In respect of the first charge, the question is  whether it has been established that respondent No. 3 had  told P.W. 15 Sarode, the then controller of Examinations  that a list of 24 names supplied by Nitin Sathe were her  own candidates and that Sarode should help them get  selected and further that Sarode should work with Nitin  Sathe in future for the benefit of all concerned.  This part

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of the charge really depends upon believing or disbelieving  the evidence P.W. 15 given before us in the light of his  prior statement in the form of a confession recorded by  P.W. 14 and the versions of Jyoti Desai, Aparna Dubey  and Ohwal.  As indicated earlier, it is clear that the  respondent was being in constant touch with Nitin Sathe  over the telephone and we have already commented on the  acceptability or otherwise of her version regarding her  coming into the telephonic contact with Nitin Sathe.  That  P.W 15 visited the respondent on 24.5.2002 is admitted.   This is also corroborated by the visitors’ register kept at  Nilambari.  Obviously, what transpired in her flat is  something that is known only to her and P.W. 15 Sarode  and if Nitin Sathe was present there, also to Nitin Sathe.   The evidence of Nitin Sathe is not before us but it is clear  that he has been arrested in connection with the scam  and he was also involved in the previous scam of the year  1996.  52.             It is contended on behalf of the respondent that  the prior statement of P.W. 15 Sarode Exhibit 53 is not a  spontaneous one and that the later part in which he seeks  to rope in the respondent was unnatural and does not  appear to be a part of the main confession that was made  by him about the conspiracy as a whole including the  permitting of all failed students in the preliminary  examination to participate in the final examination, the  rescanning, the attempt to replace the answer-sheets and  so on.  Obviously, the respondent joined the Commission  only on 8.5.2001 and even before that, the conspiracy  relating to permitting all students to take the final  examination had been enacted.  The alleged role of the  respondent started only from the decision to rescan the  answer-sheets on the pretext that the computer had  become corrupted and the subsequent attempt of  replacing the answer-sheets.  It is after narrating all these  facts that P.W. 15 has stated in his prior statement that  the respondent had called him to her residential flat and  had introduced Nitin Sathe to him and had told him that  the list sponsored by Nitin Sathe containing 24 names  were her own candidates and further that in future he  should work in conjunction with Nitin Sathe for the  mutual benefit of all concerned.  Though it may be part of  a different phase, the fact remains that P.W. 15 has also  stated that he has been called to the office of the  respondent subsequently and had been told not to reveal  the name of Nitin Sathe at the internal enquiry that was  ordered by the Acting Chairman of the Commission and  that was being carried on by the Secretary Seema  Dhamdhere. It is not possible to accept the argument of  learned counsel for respondent No. 3 that the prior  statement should be thrown out lock, stock and barrel for  the purpose of this enquiry.   As we have indicated in the  beginning, what we are concerned with is the appreciation  of the evidence of P.W. 15 examined before us in the light  of his cross-examination, the other evidence and in the  light of his prior statement contained in Exhibit 53.  So  viewed, it is really a question of believing or disbelieving  the evidence of P.W. 15 given before us.  We are not  dealing with a  prosecution  and  in  that  context the  alleged confession of a co-accused.  We are on a fact  finding enquiry based on the evidence before us and the  probabilities of the case.    

53.            In that context, we must take note of the fact  that PW 15 is himself an accused in the case registered in

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connection with the scam and he is also a self confessed  participant in the goings on in the Commission.  In that  situation,  it will be appropriate for us to look for some  corroboration  of his version before we could enter a  finding that the respondent has, in fact, said that 24  persons mentioned by Nitin Sathe were her own  candidates and that PW 15 should help them to qualify in  the examination.  This part of the case is not supported by  the papers allegedly recovered either from her flat or from  her office.  There is also no clear evidence of a list of 24  persons.  There is no adequate material to show that Nitin  Sathe was in fact present when PW 15 met the respondent  at her flat on 24.5.2002.  In this situation we think that  the benefit of doubt must go to the respondent, especially,  when our enquiry is to find out whether she is guilty of  misbehaviour within the meaning of Article 317 of the  Constitution.  So in the absence of any other evidence to  corroborate the evidence of PW 15 and his prior statement  Ext.53 we are not inclined to find that charge No.1 is  proved against the respondent.

54.             Charge No.2.                  This charge is essentially on the footing that the  respondent did not disclose the information to the  Secretary of the Commission, Seema Dhamdhare who was  conducting the internal enquiry about the request of  Sarode to not to make a criminal complaint and in that  event, he was prepared to resign from his post and that  the respondent influenced Aparna Dubey and her friend to  withdraw their complaint made to the Commission and to  file a fresh complaint implicating Seema Dhamdhare in  the racket.  The respondent did not disclose to the  Commission that Sarode had made such an offer to her.   She spoke about this in her evidence.  She also does not  deny that she did not inform the Chairman or the  Commission as a body about the offer of Sarode.  But her  case is that she informed Varma, another member, who  was an ex-Director General of Police.    The Chairman of the Commission had requested Varma to  oversee the enquiry conducted by Seema Dhamdhare.   According to her, she thought that that was sufficient.   There is nothing further to show that Varma was conveyed  this information by the respondent.  Therefore, to that  extent, the respondent had not cooperated with the  enquiry.  Aparna Dubey has given evidence that Nitin  Sathe had threatened her and compelled her to withdraw  the first complaint made and to make a second complaint  involving Seema Dhamdhare who was making the internal  enquiry.  Aparna Dubey further stated that according to  Nitin Sathe, it was at the instance of respondent No.3 that  he had approached her to retract her original complaint.   Nitin Sathe had followed up this request with threats over  the telephone.  It is true that other than the statement of  Aparna Dubey there is nothing to show that Nitin Sathe  claimed that he was acting at the behest of the respondent  or that he was acting on her behalf.  Of course, her  repeated contacting him over the telephone, does create a  suspicion, a suspicion, that Nitin Sathe might have been  acting on her behalf also.  But, we feel that based on  suspicion alone it would not be appropriate to enter a  finding on that aspect.  But the fact remains that at least  a copy of the second complaint/statement said to have  been made by Aparna  Dubey which she claimed to have  handed over to the respondent in person, was found in the  possession of the respondent.  The evidence indicates that

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it was not a document that was communicated to her by  the Commission officially, and consequently, her custody  or possession of that paper should be considered  unauthorised.  But all said and done, the only fact that  can be found as causing impediment in the internal  enquiry could be said to be her failure to disclose the  statement of PW 15 Sarode to the enquiry officer and the  suggestion of a complaint being got made against the  investigating officer herself so as to impede the internal  enquiry.  On these materials alone we would not like to  enter a finding that the respondent had committed an act  of misbehaviour by interfering with the internal enquiry.   

55.             Charge No.3                 It is admitted that the daughter of the  respondent had applied from two places for appearing in  the examination conducted by the Commission in the year  2002.  It is the case of the respondent that her daughter  had not, as a matter of fact, appeared in the examination.   But the question is whether the respondent had an  obligation to inform the Commission that her daughter  was a participant in the examination conducted by the  Commission in her capacity as a Member of the  Commission.  The respondent did not deny that she had  not informed the Commission about the candidature of  Poorva, her daughter.  She also does not deny that there  was a circular to the effect that all employees and officers  of the Commission should disclose if any of their near  relations were candidates in any examination conducted  by the Commission.  Her stand is that since she was  neither an employee nor an officer, but was a member of  the Commission, the circular did not apply to her and she  had no legal obligation to inform the Commission of her  daughter appearing in an examination conducted by the  Commission.

56.             The respondent was holding the position of a  member of a constitutional body having a higher status.   It is not possible to appreciate the stand of the respondent  that even while the employees and officers of the  Commission had an obligation to inform the Commission  about the appearance of their near relations in any  examination conducted by the Commission, no such  obligation was attached to a member of the Commission.    May be, a member of the Commission would not qualify as  an employee or as an officer of the Commission, but that  cannot absolve a member from the obligation of disclosing  to the Commission that her daughter was to appear in the  examination conducted by the Commission.  Obviously,  the object was to ensure that she did not participate in  that particular selection process lest charges are raised of  partiality in the process of selection.  Normally, in such a  situation the member or members are to be kept out of the  particular process.  Since, admittedly the daughter of the  respondent had applied for appearing in the examination  2002 from two places and the respondent had failed to  inform the Commission about the participation of her  daughter in such an examination, it has to be held that  she has misconducted herself by not making a disclosure  to the Commission in that regard.  The fact that the  daughter later on did not actually appear in the  examination would make no difference.   

57.             Learned counsel for the respondent argued that

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this charge did not relate to the 1999 examination about  which the reference was being made and hence this  charge cannot survive, especially, in view of the fact that  charge No.3 and 6 originally proposed had been dropped.   Even while dropping those charges this Court had  retained charge No.3 after a consideration of the relevant  aspects on the basis that the charge had relevance to her  conduct as a member of the Commission especially in the  light of what had transpired regarding the 1999  examination.  No doubt, it was clarified that this aspect  could be argued at the time the court was to take a final  decision but having considered the circumstances and the  nature of the charges against the respondent we are not  inclined to agree with the learned counsel that this charge  should be kept out of consideration in the present  enquiry.  In fact, on an application of mind to all the  relevant aspects it appears that one or two other charges  should also have been framed against the respondent on  the materials available.  But then, the Attorney General  had not suggested those charges and we had also not  framed those charges.  Therefore, for the moment we do  not say anything more about those charges.  Suffice it to  say that this charge has to be found against the  respondent and it has also to be held  that  her  conduct  in not informing the Commission about the making of  applications by her daughter for appearing in the  examination 2002 conducted by the Public Service  Commission amounts to misconduct.

58.             Charge No.4                 Even while considering charge No.2, the  evidence of Aparna Dubey to the effect that she was made  to withdraw her complaint by Nitin Sathe by holding out  threats to her and that she had to file a second complaint  by handing over the same to the respondent implicating  Seema Dhamdhare, the Secretary to the Commission has  been referred to.  An attempt was made to show that  Aparna Dubey was not an honest person and that she and  her friend were acting in concert to defame the  respondent.  Aparna Dubey had produced an incorrect  experience certificate and she had not produced an  accurate creamy layer certificate and she was unreliable.   Of course, we have noticed that there is not enough  evidence to show that Nitin Sathe had acted at the behest  of the respondent while he is alleged to have threatened  Aparna Dubey and her friend to withdraw their first  complaint and compelling her to make a second  complaint.  But the fact remains that one of the copies of  the complaint was found in the residence of the  respondent when it was searched and according to the  evidence the respondent was not authorised to keep such  a copy of the alleged complaint since it had not been  communicated to her officially.  The explanation of the  respondent is that she had found a copy of the complaint  lying on her desk in her office and she had immediately  affixed a seal on it and forwarded it.  But that part of the  storey is belied by the fact that at least one copy was  found in her premises when the search was made.

59.             It is true that the respondent was in constant  touch with Nitin Sathe.  We have already discountenanced  the story that she was contacting Nitin Sathe only in  connection with the sale of her plot in Pune.   But even  then, it cannot be said that there is adequate evidence to

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show any collusion with Nitin Sathe as reflected by this  charge.  Therefore, though some suspicions are raised  regarding the conduct of the respondent in this court in  the light of her own evidence, it is not possible to say that  the charge, as such, has been made out so as to enable us  to hold that this charge is proved against the respondent.                     

60.             Thus, based on our finding on charge No.3 and  our observations on charge No.2, we are of the view that  the respondent has not behaved in a manner befitting a  member of a constitutional body like the Public Service  Commission and under the circumstances we answer the  reference made by Hon’ble the President of India to us in  the affirmative only as regards charge No.3.  

61.             The reference is answered as above.  The answer  will be duly forwarded to the Hon’ble the President of  India.