2013 Supreme(SC) 260

SUPREME COURT OF INDIA
DR. B. S. CHAUHAN AND FAKKIR MOHAMED IBRAHIM KALIFULLA, JJ.
NIRMALA J. JHALA - Appellant
VERSUS
STATE OF GUJARAT & ANR. - Respondents
Civil Appeal No. 2668 of 2005
Decided on : 18-3-2013.

Point in Issue :
Whether in the facts of the case order of punishment of compulsory retirement to appellant is sustainable.

Headnote:Service & Employment — Compulsory retirement — Order of — On account of demanding illegal gratification in lieu of favouring complainant — Propriety of — Sustainability — Finding of — On close scrutiny of evidence and law cited in the case — Court concluded that High Court committed grave error in placing reliance on the statement of the complainant as well statements of some other witnesses recorded in a preliminary enquiry — The preliminary enquiry and it’s report were of no value and had lost all it’s significance when a regular enquiry was made in the case — This is all in violation of the principles of natural Justice — The onus to prove charges was on department — It did not examine the important witnesses in the case — Many of the allegation made by complainant in the case are either not proved or disbelieved — The complainant and one advocate examined by prosecution stated the appellant husband used to collect the bribe money on behalf of appellant but it is very much on record that at the relevant time she was not married — There is nothing on record that appellant was ever given any adverse remark in her ACRs or punished earlier — Punishment awarded to appellant is solely on uncorroborated statement of an accused who was facing trial for mis-apprepriation — Court accordingly allowed the appeal — As she has already reached the age of superannuation, therefore, she cannot been granted any substantive relief except to exonerate her honourably of all charges and allow appeal with costs which is quantified to the tune of Rs. 5 lacs.

       Held :

       Court reach the following inescapable conclusions:—

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

       (ii) The Enquiry Officer, the High Court on administrative side as well as on judicial side, committed a grave error in placing reliance on the statement of the complainant as well as of Shri C.B. Gajjar, Advocate, recorded in a preliminary enquiry. The preliminary enquiry and its report loses significance/importance, once the regular enquiry is initiated by issuing charge-sheet to the delinquent. Thus, it was all in violation of the principles of natural justice.

       (iii) The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was delinquent in the enquiry.

       (iv) The onus lies on the department to prove the charge and it failed to examine any of the employee of the court, i.e., Stenographer, Bench Secretary or Peon attached to the office of the appellant for proving the entry of Shri Gajjar, Advocate in her chamber on 17.8.1993.

       (v) The complainant has been disbelieved by the Enquiry Officer as well as the High Court on various issues, particularly on the point of his personal hearing, the conversation between the appellant and Shri C.B. Gajjar, Advocate on 17.8.1993, when they met in the chamber.

       (vi) Similarly, the allegation of the complainant, that appellant had threatened him through his wife, forcing him to withdraw the complaint against her, has been disbelieved.

       (vii) The complainant as well as Shri C.B. Gajjar, Advocate had been talking about the appellant’s husband having collecting the amount on behalf of the appellant, for deciding the cases, though at that point of time, she was unmarried.

       (viii) There is nothing on record to show that the appellant whose defence has been disbelieved in toto, had ever been given any adverse entry in her ACRs, or punished earlier in any enquiry. While she has been punished solely on uncorroborated statement of an accused facing trial for misappropriation. [Para ]

       Law Laid Down :

       In case the High Court does not protect the honest Judicial Officers, the survivor of the Judicial System would itself be in danger.