Hemant Madhaorao Gandole vs The District And Sessions
2016 Latest Caselaw 2618 Bom

                                                           1                        wp3785.03

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                         
                                 NAGPUR BENCH : NAGPUR




                                                                 
                            WRIT PETITION NO.3785 OF  2003




                                                                
    Hemant Madhaorao Gandole,
    aged 42 years, occupation :
    business, r/o 27, Kotwalnagar,




                                                         
    Nagpur.                                                    ...            Petitioner 


    1)
                     - Versus -
                                 
            The District and Sessions
                                
            Judge, Nagpur. 


    2)      The Hon'ble High Court of
      


            Judicature at Mumbai, through 
   



            its Registrar (Appellate Side),
            Mumbai.                                            ...         Respondents
                                       -----------------





    Shri  M.B. Agasti, Advocate for petitioner. 
    Shri A.S. Jaiswal, Senior Advocate with Mrs. R. Bajaj, Advocate for
    respondents. 





                                       ----------------


                                            CORAM :    B.P. DHARMADHIKARI AND 
                                                                KUM. INDIRA JAIN,  JJ.

                                            DATED  :    JUNE 8,  2016





                                                       2                            wp3785.03

                                




                                                                                        
    ORAL  JUDGMENT  (PER KUM. INDIRA JAIN, J.) :




                                                                

This writ petition is directed against the order of dismissal

of petitioner passed by respondent no.1 on 9/7/2002 in

Departmental Enquiry No. 2/2001.

2) Before we advert to the question raised in the petition,

few relevant facts may be stated as under :

On 27/1/1983, petitioner, a candidate on Select List of

Stenographers, was appointed as Section Writer on the

establishment of District and Sessions Court, Wardha in a vacant

post. He was then appointed as Stenographer (Lower Grade) with

effect from 20/8/1983. In 1985, he was transferred to the

establishment of District and Sessions Court, Nagpur.

3) It is the case of the petitioner that he was an elected

Secretary of the Maharashtra State Judicial Stenographers'

Association, a State level Body and President of the Nagpur District

Court Employees' Association and was required to place grievances

of the members of Association before first respondent to take steps

and improve working condition of the employees in the Department.

3 wp3785.03

As averred by the petitioner, it caused inconvenience to the

Ministerial Head of the staff and respondent no.1, who in

connivance with others, developed grudge and foisted false

allegations of misconduct against him.

4) On 27/6/2000, District and Sessions Judge, Nagpur

issued show cause notice to petitioner as to why disciplinary action

should not be taken against him for :

1) using intemperate language and making baseless

allegations against the Judicial Officer reporting adverse remarks against the petitioner and

2) publishing news in the daily newspaper

"Yugdharma" dated 22/6/2000 and weekly newspaper "Jan Aarop" dated 23/6/2000 making adverse allegations against

the higher Authorities with an intention to bring pressure on Disciplinary Authority and lowering down the image of judiciary in public.

This show cause notice was replied by the petitioner on 17/7/2000.

5) The petitioner came to be charge-sheeted on 23/1/2001.

He submitted his written statement on 21/4/2001 denying the

4 wp3785.03

charges levelled against him. Disciplinary enquiry was held and

Enquiry Officer found petitioner guilty of the charges. Enquiry

Report dated 4/5/2002 was submitted to the Disciplinary Authority

by the Enquiry Officer. Thereafter second show cause notice was

issued to petitioner by Disciplinary Authority and on 9/7/2002,

petitioner was dismissed from service. Administrative appeal

preferred by petitioner met with the same fate.

6)

Shri Agasti, learned Counsel for petitioner, has raised

manifold contentions and submitted that -

(i) During the course of enquiry, petitioner asked for certain

documents. Those documents were not supplied to him The

learned Counsel submits that principles of natural justice are

thus violated on account of non supply of relevant documents.

(ii) The entire exercise of recording statements of witnesses

was completed in a day. Petitioner was not informed to attend

the enquiry and was not called upon to cross-examine the

witnesses and so an opportunity of cross-examination was

denied to him.

           (iii)       There was no direct evidence to show that the petitioner





                                                    5                            wp3785.03

was author of news published in the newspapers. The evidence

of Editors of newspapers is hearsay and ought not to have been

relied upon.

(iv) Additional witnesses were examined without hearing the

petitioner, which caused him serious prejudice.

(v) Punishment of dismissal is shockingly disproportionate to

the gravity of misconduct proved. Past service record of

petitioner from 1983 to 1999 is unblemished and the same was

not considered by the Disciplinary Authority while imposing

punishment.

(vi) Articles and memorandum of charge would indicate that

petitioner was putting up grievances of members of Association

for redressal and the same rules out the possibility of his

personal involvement in the alleged misconduct.

7) Per contra, Shri Jaiswal, learned Senior Counsel for

respondents, strongly supports the impugned order and submits that

charges were duly proved by cogent and convincing evidence. It is

submitted that considering gravity of charges proved and past

6 wp3785.03

antecedents of petitioner, dismissal was the only adequate

punishment. The learned Senior Counsel would submit that

petitioner was the Union Leader and he was to act with more

responsibility. Without taking his grievance to higher Authorities, he

published news not only against a particular Judicial Officer, but

blaming the judicial system and bringing disrepute to the system as

a whole. The learned Senior Counsel also submits that petitioner

did not participate in the enquiry though several opportunities were

given to him and to prove alleged malafides, he did not enter the

witness box. It is submitted that considering the material available

on record, evidence against the petitioner and findings with reasons

recorded by the Enquiry Officer and considered by the Disciplinary

Authority, no interference is warranted in the writ jurisdiction.

8) With the assistance of learned Counsel for the parties,

we have gone through the material placed on record. The main

grievance of petitioner is that principles of natural justice have been

violated as documents demanded were not supplied to him. In this

regard, petitioner had submitted a communication dated 13/5/2002

to District and Sessions Judge, Nagpur (Annexure 17). The

relevant paragraphs of this communication are -

7 wp3785.03

"It is really surprising that all the proceedings in the Inquiry

were in English but for reasons best known to the Inquiry Officer, she had chosen to prepare the Inquiry Report in

Marathi, probably to prevent me from discovering mistakes in her English Language. I am intending to move the High Court to challenge the manner in which she had conducted the inquiry with a biased mind against me. Hence, I request you to

supply me an English Translation of the Inquiry Report inasmuch as the High Court does not accept true copy of the Inquiry Report, if it is in regional language.

I also request you to kindly supply me the Order Sheets

and all the documents on which the Inquiry Officer had based her report to enable me to annex copies of those documents to

the writ petition, which I shall be filing in the High Court.

It is only upon receipt of the English Translation of the Inquiry Report and the copies of documents referred to in the

Inquiry Report and relied upon by the Inquiry Officer, including the evidence recorded by the Inquiry Officer, that I will be in a position to submit to you my reply to the show cause notice."

9) Before we consider this ground, it would not be out of

place to mention here the principles summarized by the Hon'ble

Supreme Court in this regard in State Bank of Patiala and others

vs. S.K. Sharma {(1996) 3 SCC 364}). The principles are :

"We may summarise the principles emerging from the above discussion. [These are by no means intended to be exhaustive

and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee] :

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision

8 wp3785.03

violated is of a substantive nature or (b) whether it is

procedural in character.

(2) A substantive provision has normally to be complied with

as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this : procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural

provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under 'no notice',

'no opportunity' and 'no hearing' categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has

prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice, including setting aside the enquiry

and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is

called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The Court may not insist on proof of prejudice in

such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give

that opportunity in spite of the delinquent officer/employee asking for it. The prejudice is self evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

9 wp3785.03

(4)(a) In the case of a procedural provision which is not of a

mandatory characters the complaint of violation has to be examined from the standpoint of substantial compliance. Be

that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

(b) In the case of violation of a procedural provision, which is

of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the

said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot

be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/employee has not waived it or that the provision could no be waived by him, then

the Court or Tribunal should make appropriate directions [include the setting aside of the order of punishment], keeping in mind the approach adopted by the Constitution Bench in B.Karunakar. The ultimate test is always the same viz., test of

prejudice or the test of fair hearing, as it may be called. (5) Where the enquiry is not governed by any

rules/regulations/statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the

Tribunal should make a distinction between a total violation of natural justice [rule of audi alteram partem] and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and "no adequate opportunity", i.e., between "no

notice"/"no hearing" and "no fair hearing".

(a) In the case of former, the order passed would undoubtedly be invalid [one may call it `void' or a nullity if one chooses to]. In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule [audi alteram partem].

(b) But in the latter case, the effect of violation [of a facet of the rule of audi alteram partem] has to be examined from the

10 wp3785.03

standpoint of prejudice; in other words, what the Court or

Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not

have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle [No.5] does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.]

(6) While applying the rule of audi alteram partem [the primary principle of natural justice] the Court/Tribunal/Authority must always bear in mind the ultimate and over-riding objective underlying the said rule, viz., to ensure a fair hearing and to

ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying

situations that arise before them.

(7) There may be situations where the interests of state or public interest may call for a curtailing of the rule of audi

alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision. Now, in which of the above principles does the violation of sub-

clause (iii) concerned herein fall? In our opinion, it falls under

Principles Nos.3 and 4(a) mentioned above. Though the copies of the statements of two witnesses [Kaur Singh, Patwari and Balwant Singh] were not furnished, the respondent was permitted to peruse them and take notes therefrom more than

three days prior to their examination. Of the two witnesses, Balwant Singh was not examined and only Kaur Singh was examined. The respondent did not raise any objection during the enquiry that the non-furnishing of the copies of the statements is disabling him or has disabled him, as the case

may be, from effectively cross- examining the witnesses or to defend himself. The Trial Court has not found that any prejudice has resulted from the said violation. The Appellate Court has no doubt said that it has prejudiced the respondent's case but except merely mentioning the same, it has not specified in what manner and in what sense was the respondent prejudiced in his defence. The High Court, of course, has not referred to the aspect of prejudice at all. For the above reasons, we hold that no prejudice has resulted

11 wp3785.03

to the respondent on account of not furnishing him the copies

of the statements of witnesses. We are satisfied that on account of the said violation, it cannot be said that the

respondent did not have a fair hearing or that the disciplinary enquiry against him was not a fair enquiry. Accordingly, we allow the appeal and set aside the judgment of the High Court affirming the judgments of the Trial Court and Appellate Court.

The suit filed by the respondent shall stand dismissed. No costs."

10) It is pertinent to note that petitioner had submitted his

written statement on 21/4/2001. There is no whisper in the written

statement that he did not receive the documents as per list

annexed to the charge-sheet. The other documents than the list of

documents annexed to the memorandum of charge asked by the

petitioner were to establish his defence regarding alleged malafides.

In fact, the documents other than in the list were not relevant to

establish the charge against the petitioner. It can be seen from the

reasons recorded by the Enquiry Officer that no material or

document has been relied upon by the Enquiry Officer, copy of

which was not allowed to the petitioner.

11) So far as the first charge is concerned, which relates to

the use of intemperate language while submitting explanation to the

adverse remarks, petitioner had not disputed his communication

12 wp3785.03

dated 19/6/2000. On the contrary, he relies upon the same. In

respect to second charge, copies of statements of the Editors of

newspapers and news clippings were furnished to him along with

the charge-sheet. We, therefore, find that grievance of petitioner

regarding violation of principles of natural justice for non supply of

documents is not sustainable.

12)

The next ground raised by petitioner as stated above is

that he was not called upon to cross-examine the witnesses and an

opportunity was denied resulting to serious prejudice to him. He

also submits that in a day, seven witnesses were examined in

enquiry and evidence was completed in a haste on the same day.

13) As can be seen from the record, petitioner had appeared

before the Enquiry Officer on 25/4/2001, 2/5/2001, 11/5/2001 and

1/6/2001. Thereafter he remained absent. The Enquiry Officer

again sent a notice on 22/1/2002 and 15/4/2002 to secure presence

of the petitioner. Notice was also sent to him by speed post.

Despite notices, petitioner did not appear in the proceedings of

enquiry and so, Enquiry Officer proceeded with the enquiry. In view

of these facts apparent on record, we do not find any substance

13 wp3785.03

even in the second grievance raised by petitioner that an

opportunity to cross-examine the witnesses was denied to him.

14) Regarding news published in the daily and weekly

newspapers, Enquiry Officer has relied upon the evidence of Editors

of newspapers. They are the independent persons and had no

reason to either side the Department or grind an axe against the

petitioner. Their evidence has gone unchallenged. Relying upon

their evidence, Enquiry Officer came to the conclusion that petitioner

was author of the news published in the newspapers. We do not

find any error in the reasoning recorded by the Enquiry Officer and

accepted by the Disciplinary Authority in this regard.

15) On quantum of punishment, learned Counsel for

petitioner submitted that punishment is shockingly disproportionate

to the mis-conduct proved. Affidavit-in-reply filed by respondents

indicates the past antecedents of petitioner. Two departmental

proceedings were initiated and initially petitioner was reverted to the

post of Junior Clerk from the post of Stenographer.

16) Needless to state that punishment must always be

commensurate with the gravity of the proved charges. Shri Agasti,

14 wp3785.03

learned Counsel for petitioner, placed reliance on the decision of

Madras High Court in Syed Khader Mohiuddin vs. The

Chairman, Tamil Nadu Public Service Commission and another

(1997 (II) LLJ 125) and submits that in the similar set of facts,

punishment of removal of an employee was found as

disproportionate and the order of removal was set aside. Petitioner

in this case was a former Assistant in Tamil Nadu Public Service

Commission. Charge-sheet was issued to him. While submitting an

explanation, he used intemperate language.

17) In the case on hand, news items were published. Both

the news items were proved by the Editors of the respective

newspapers. They are self speaking to indicate use of intemperate

and disrespectful language not only against a particular Judicial

Officer, but even against the judicial system as a whole. In this

view of the matter, facts in the case referred by the learned Counsel

for petitioner and in this writ petition are distinguishable.

18) The petitioner has come up with a specific case that he

being a Union Leader, Disciplinary Authority had a grudge against

him as he was required to put up grievances of the employees for

15 wp3785.03

redressal before the District and Sessions Judge. Though petitioner

attributed malafides, he did not enter the witness box. He chose not

to participate in the enquiry despite due service of notice. For want

of evidence, we do not accept the contention raised by petitioner

that allegations of mis-conduct were foisted due to malafides.

19) It is significant to note that an employee attached to the

judicial system is governed by Conduct Rules. Once he decides to

enter the Department, he must accept the restrictions on his

conduct. That is what Conduct Rules demand from him. As is

known to all, Judiciary is the last hope of people. It is obligatory on

each and every component attached to the system to maintain its

dignity and reputation to the best of his abilities. Petitioner failed in

this exercise and by his deeds and behaviour, brought disrepute to

the system as a whole in public.

20) In this premise, we hold that writ petition is without any

merit. Hence, no interference is warranted in the writ jurisdiction.

Writ petition is, therefore, dismissed. Rule is discharged. No costs.

                       JUDGE                                           JUDGE

    khj