HIGH COURT OF JUDICATURE AT BOMBAY THROUGH ITS REGISTRARversusSHRI UDAYSINGH S/O. GANPATRAO NAIK NIMBALKAR AND ORS.

              HIGH COURT OF JUDICATURE AT BOMBAY                                 A
                     THROUGH ITS REGISTRAR

-                                       v.
               SHRI UDAYSINGH S/0. GANPATRAO NAIK
                       NIMBALKAR AND ORS.

                                 APRIL 9, 1997
                                                                                 B

                [K. RAMASWAMY AND D.P. WADHWA, JJ.]

          Seivice Law :

            Dismissal-Judicial Officer--Complaint against for demanding illegal
                                                                                 c
    gratification-Adverse remarks by District Judge in Confidential RepOJt-Rep-
    resentation against-District Judge substantiating his remarks by statements of
    litigalll and Advocates---High Cowt orde1ing disciplinary proceedings against
    Civil Judge and ultimately the Officer dismissed from se1vice--Writ peti-
    tion-Division Bench set aside the order of dismissal holding that the District D
    Judge was biased against the Officer-Held, It cannot be said that the Dist1ict
    Judge was biased against the Officer-Evidence was available before the
    disciplilla1y Authority namely the High Cowt-1he misconduct alleged
    against the Officer stands proved-171e imposition of penalty of dismissal is
    well justified-Judicial Review.                                                E
         B.C. Chatwvedi v. Union of India & 01~·., [1995] 6 SCC 749 and State
    of Tamil Nadu v. S. Subaramaniam, [1996] 7 SCC 509, relied on.

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 9506 of
    ~-                                                                            F
         From the Judgment and Order dated 26.4.96 of the Bombay High
    Court in W.P. No. 2210 of 1993.

          Harish N. Salve and D.M. Nargolkar for the Appellant.
                                                                                 G
          P.S. Lambat for the Respondents.

          The following Order of the Court was delivered :

         This appeal by certificate arises from the Judgment of the Division
    Bench of the High Court of Bombay, Nagpur Bench, made on April 26, H
                                        803
    804                  SUPREME COURT REPORTS                  (1997] 3 S.C.R.

A 1996 in Writ Petition No. 2210 of 1993.

           While the respondent was working as Civil Judge, Jr. Division at
    Nasik, an allegation was made against him that on October 21, 1989, he
    had sent a word through a messenger to one Smt. Kundanben, defendant
    in a civil suit for eviction, demanding a sum of Rs. 10,000 as illegal
B   gratification to deliver judgment in her favour. On receipt of the informa-
    tion, she appears to have complained to Mr. Sathe, her advocate; who in
    turn appears to have complained to one Mr. Parakh, Assistant Government
    Pleader; who in turn alleged to have complained to one Shri N.A. Gite, the
    District Government Pleader. The District Government Pleader informed
C   the District Judge of the demand of illegal gratification made by the
    respondent. On the bases thereof, the District Judge made adverse remarks
    against the respondent in his Confidential Reports for 1989-90. On coming
    to know of the same, the respondent made an appeal to the High Court
    to expunge the said remarks. The High Court, thereon, has directed the
D   District Judge to substantiate the adverse remarks after recording the
    evidence of the aforesaid advocates. Subsequently, their statements
    came to be recorded. It is relevant to note, at this stage, that the
    respondent by then was transferred from Nasik by notification dated
    April 26, 1990, but had not been relieved by the date when a letter was
    sent by Mr. Gite, District Government Pleader to the District Judge on
E   May 4, 1990. On the basis of the statements recorded from the aforesaid
    three persons and also Smt. Kundanben, the complainant, the High
     Court initiated disciplinary enquiry against the respondent. The Enquiry
    Officer after giving reasonable opportunity to the respondent conducted
    enquiry and submitted his report. The charge framed against the respon-
     dent is as under :
F
            "That on Sunday, the 22nd October, 1989, at about 10.00 a.m. you
            made a demand of illegal gratification of Rs. 10,000 through your
            messengers, from Smt. Kundan Kishor Somayya (Thakkar), resi-
            dent of house No. 4518, Sardar Chowki, opposite Panchavati Police
G           Chowki, Nasik, defendant in regular Civil Suit No. 581/81, for
            deciding the said suit in her favour and that you thereby indulged
            in corrupt practice amounting to gross misconduct."

        The High Court after receipt of the enquiry report and consideration
H thereof, disagreed with the conclusion reached by the Enquiry Officer and
    H.C. OF JUDICATURE AT BOMBAY THROUGH REGISfRARv. UDAYSINGH          805

recorded its p1ima f acie conclusions indicating as to how it differed from    A
the findings reached by the Enquiry Officer and stated as under :

        "Taking the cumulative view of these statements recorded by the
        Enquiry Officer, Nasik, we were of the view that the same are
        adequate enough to hold the delinquent's culpability in the matter
        of demand of illegal gratification for delivering a favourable judg-   B
        ment. The integrity is, therefore, thrown in doubt and penal action
        is required to be taken to maintain judicial discipline.

        For the reason stated hereinabove, we disagree with the finding of
        the Enquiry Officer who has not analysed and appreciated the
        evidence and material on record in right perspective."
                                                                               c
      Accordingly, opportunity was given. to the delinquent officer, the
respondent, to submit his explanation. The respondent submitted his ex-
planation and on consideration thereof, the Disciplinary Committee of the
High Court by its proceedings dated July 31, 1993 recommended for              D
dismissal and the Government on consideration of the record and the
recommendation of the High Court reached the following conclusion :

        "And Whereas, the Chief Justice and the Judges of the High Court
        of Judicature at Bombay, being the Disciplinary Authority, on
        considering the said report of the Enquiry Officer and evidence        E
        on record, decided not to agree with the finding of the Enquiry
        Officer;

        And Whereas, thereupon, the Chief Justice and the Judges of the
        High Court of Judicature at Bombay, being the Disciplinary
        Authority, had served a show cause notice on the said Shri             F
        Naiknimbalkar, calling upon him to show cause why the punish-
        ment of dismissal from service should not be imposed upon him;

        And Whereas, after considering the cause shown by the said Shri
        Naiknimbalkar, the Disciplinary Authority have recommended to          G
        Government to inflict the punishment of dismissal from service on
        the said Shri Naiknimbalkar;

        And Whereas, on considering the report and the finding of the
        Enquiry Officer, the cause shown by the said Shri Naiknimbalkar
        and the recommendation of the Chief Justice and the Judges of          H
    806                  SUPREME COURT REPORTS                  [1997) 3 S.C.R.

A           the High Court of Judicature at Bombay, the Government of
            Maharashtra has decided to accept the said recommendation of
            the Chief Justice and the Judges of the High Court of Judicature
            at Bombay to inflict the punishment of dismissal from service on
            the said Shri Kaiknimbelkar;"

B
          Calling in question this order of dismissal from service, the respon-
    dent filed a writ petition in the High Court. The Division Bench after
    noticing various decisions of this Court came to the conclusion that the
    District Judge was biased against the respondent; and he recorded the
    evidence of three witnesses, advocates and the complainant. That formed
C   the foundation for laying the action against the respondent. The cir-
    cumstances available on record do indicate that no reasonable man would
    reach the conclusion that the respondent was actuated with a corrupt
    motive to demand illegal gratification to deliver favourable judgment. The
    decision of the High Court dismissing the respondent is, therefore, vitiated
D   by manifest error of law warranting interference. Accordingly, the order of
    dismissal came to be set aside. Thus, this appeal by certificate.


         Shri Harish Salve, learned senior counsel appearing for the appel-
  lants contends that the view taken by the Division Bench is not correct in
E law. Under judicial review court cannot reappreciate the evidence of
  witnesses and reach its own conclusion. The Court could have seen on the
  basis of evidence on record whether a reasonable man would reach the
  conclusion that the respondent was actuated with the corrupt motive in
  making demand for illegal gratification for discharge of official duty; the
F High Court, therefore, has over-stepped its limits of judicial review and the
  conclusion reached cannot be supported either by principle of law or any
  of the law laid down by this Court. Shri Lambat, learned counsel appearing
  for the respondent, on the other hand, contends that on the basis of
  evidence on record, no reasonable man would reach the conclusion that
  the respondent has committed any act of misconduct, i.e., demand of illegal
G gratification. The subsequent statements of the advocates and of the com-
   plainant show that it is only face saving attempt made by the District Judge
   to substantiate the adverse remarks made by the District Judge; when the
   respondent brought these facts on record, the Disciplinary Committee did
   not consider the same from this perspective. So they cannot form as
H foundation for taking disciplinary action against the respondent.
     H.C.OFJUDICATUREATBOMBAYTHROUGH REGISTRAR•·. UDAYSINGH                 807

      Having regard to the respective contentions, the question that arises        A
for consideration is : whether the view taken by the Division Bench is
sustainable in law? As regards the nature of the judicial review, it is not
necessary to trace the entire case law. A Bench of three Judge of this Court
has considered its scope in recent judgment in B. C. Chaturvedi v. Union of
India & Ors., (1995] 6 SCC 749 in which the entire case law was summed
up in paragraph 12, 14 and 15 thus :
                                                                                   B

        "12. Judicial review is not an appeal from a decision but a review
        of the manner in which the decision is made. Power of judicial
        review is meant to ensure that the individual receives fair treatment
        and not to ensure that the conclusion which the authority reaches          C
        is necessarily correct in the eye of the court. When an inquiry is
        conducted on charges of misconduct by a public servant, the
        Court(fribunal is concerned to determine whether the inquiry was
        held by a competent office or whether rules of natural justice are
        compiled with. Whether the findings or conclusions are based on            D
        some evidence, the authority entrusted with the power to hold
        inquiry has jurisdiction, power and authority to reach a finding to
        fact or conclusion. But that finding must be based on some
        evidence. Neither the technical rules of Evidence Act nor of proof
        of fact or e\~dence as defined therein, apply to disciplinary proceed-
        ing. When the authority accepts that evidence and conclusion receives      E
        support therefrom, the disciplinary authority is entitled to hold that
        the delinquent officer is guilty of the charge. The Courtrrribunal in
        its power of judicial review does not act as appellate authority to
        reappreciate the evidence and to arrive at its own independent
        findings on the evidence. The Court([ribunal may interfere where the       F
        authority held the proceedings against the delinquent officer in a
        manner inconsistent with the rules of natural justice or in violation of
        statutory rules prescribing the mode of inquiry or where the con-
        clusion or finding reached by the disciplinary authority is based on
        no evidence. If the conclusion or finding be such as no reasonable
        person would have ever reached, the Court(fribunal may interfere           G
        with the conclusion or the findings and mould the relief so as to make
        it appropriate to the facts of each case.

        14. In Union of India v. S.L. Abbas, (1993] 4 SCC 357 when the
        order of transfer was interfered with by the Tribunal, this Court          H
    808                 SUPREME COURT REPORTS                    (1997] 3 S.C.R.

A          held that the Tribunal was not an appellate authority which could
           substitute its own judgment to that bona fide order of transfer. The
           Tribunal could not, in such circumstances, interfere with orders of
           transfer of a government servant. In Administrator of Dadra &
           Nagar Haveli v. H.P. Vora, (1993) Supp. 1 SCC 551 it was held that
           the Administrative Tribunal was not an appellate authority and it
B          could not substitute the role of authorities to clear the efficiency
           bar of a public servant. Recently in State Bank of India v.
           Samarandra Kislwre Endow, (1994] 2 SCC 537 a Bench of this
           Court which two us (B.P. Jeevan Reddy and B.L. Hansaria, JJ.)
           were members, considered the order of the Tribunal which
c          quashed the charges as based on no evidence, went in detail into
           the question as to whether the Tribunal had power to appreciate
           the evidence while exercising power of judicial review and held
           that a tribunal could not appreciate the evidence and substitute its
           own conclusion to that of the disciplinary authority. It would,
           therefore, be clear that the Tribunal cannot embark upon apprecia-
D           tion of evidence to substitute its ow11 findings of fact to that of a
            disciplinary/appellate authority.

            15. It is, therefore, difficult to go into the question whether the
            appellant was in possession of property disproportionate to the
E           known sources of his income. The findings of the disciplinary
            authority and that of the Enquiry Officer are based on evidence
            collected during the inquiry. They reached the findings that the
            appellant was in possession of Rs. 30,000 in excess of his satisfac-
            torily accounted for assets from his known source of income. The
            alleged gifts lo his wife as Stridhana and to his children on their
F           birthdays were disbelieved. lt is within the exclusive domain of the
            disciplinary authority to reach that conclusion. There is evidence
            in that behalf."

          Law on the nature of the imposition of the penalties, it has been
G summed up on paragraph 18 thus :

            "A review of the above legal position would establish that the
            disciplinary authority, and on appeal the appellate authority, being
            fact-finding authorities have exclusive power to consider the
H           evidence with a view to maintain discipline. They are invested with
    H.C. OF JUDICATURE AT BOMBAY THROUGH REGISTRAR v. UDA Y SINGH        809

        the discretion -to impose appropriate punishment keeping in view        A
        the magnitude or gravity of the misconduct. The High
        Court(fribunal, while exercising the power of judicial review can-
        not normally substitute its own conclusion on penalty and impose
        some other penalty. If the punishment imposed by the disciplinary
        authority or the appellate authority shocks the conscience of the
        High Court(fribunal, it would appropriately mould the relief,
                                                                                B
        either directing the disciplinary/appellate authority to reconsider
        the penalty imposed, or to shorten the litigation, it may itself, in
        exceptional and rare cases, impose appropriate punishment with
        cogent reasons in support thereof."
                                                                                c
      Accordingly, the order of the Tribunal in reversing the imposing of
the penalty was set aside. In another judgment in State of Tamil Nadu v.
S. Subaramaniam, [1996] 7 SCC 509, this Court has considered the scope
of the power of judicial review vis-a-vis re-appreciation of evidence and
concluded as under :
                                                                                D
        "The Tribunal appreciated the evidence of the complainant and
        according to it the evidence of the complainant was discrepant and
        held held that the appellant had not satisfactorily proved that the
        respondent had demanded and accepted illegal gratification. The
        Tribunal trenched upon appreciation of evidence of the com-             E
        plainant, did not rely on it to prove the above charges. On that
        basis, it set aside the order of removal. Thus this appeal by special
        leave.

        The only question is : whether the Tribunal was right in its F
        conclusion to appreciate the evidence and to reach its own finding
        that the charge has not been proved. The Tribunal is not a court
        of appeal. The power of judicial review of the High Court under
        Article 226 of the Constitution of India was taken away by the
        power under Article 323-A and invested the same in the Tribunal
        by Central Administrative Tribunal Act. It is settled law that the G
        Tribunal has only power of judicial review of the administrative
        action of the appellate on complaints relating to service conditions
        of employees, it is the exclusive domain of the disciplinary authority
        to consider the evidence on record and to record findings whether
        the charge has been proved or not. It is equally settled law that H
    810                   SUPREME COURT REPORTS                     [1997] 3 S.C.R.

A           technical rules of evidence have no application for the disciplinary
            proceedings and the authority is to consider the material on record.
            In judicial review, it is settled law that the Court or the Tribunal
            has no power to trench on the jurisdiction to appreciate the
            evidence and to arrive at its own conclusion. Judicial review is not

B
            an appeal from a decision but a review of the manner in which the
            decision is made. It is meant to ensure that the delinquent receives
            fair treatment and not to ensure that the conclusion which the
            authority reaches is necessarily correct in the view of the Court or
            Tribunal. When the conclusion reached by the authority is based
                                                                                        -
            on evidence, Tribunal is devoid of power to reappreciate the
c           evidence and would (sic) come to its own conclusion on the proof
            of the charge. The only consideration the Court,'Trihunal has in its
            judicial review is to consider whether the conclusion is based on
             evidence on record and supports the finding or whether the con-
             clusion is based on no evidence. This is the consistent view of this
             Court vide B. C. Chaturvedi v. Union of India, (1995) 6 SCC 749,
D
            State of Tamil Na du v. T. V: Venugopalan, [1994] 6 SCC 302 (SCC
             para 7), Union of India v. Upendra Singh, (1994] 3 SCC 357 (SCC
             para 6), Govemment of Tamil Nadu v. A. Rajapandian, (1995] 1
             SCC 216 (SCC para 4) and B. C. Chaturvedi v. Union of India, (at
             pp. 759- 60). In view of the settled legal position, the Tribunal has
E            committed serious error of law in appreciation of the evidence and
             in coming to its ov.n conclusion that the charge had not been
             proved. Thus we hold that the view of the Tribunal is ex f acie illegal.
             The order is accordingly set aside. OA/TP/WP stands dismissed."

          Tht:se two judgments squarely cover the controversy in this case.
F

            It is seen that the evidence came to be recorded pursuant to the
     complaint made by Smt. Kundanben, defendant in the suit for eviction. It
     is true that due to time lag between the date of the complaint and the date
G    of recording of evidence in 1992 by the Enquiry Officer, there is bound to
     be some discrepancies in evidence. But the Disciplinary proceedings are
     not a criminal trial. Therefore, the scope of enquiry is entirely different
     from that of criminal trial in which the charge is required to be proved
     beyond doubt. But in the case of disciplinary enquiry, the technical rules
     of evidence have no application. The doctrine of "proof beyond doubt" has
H    no application. Preponderance of probabilities and some material on
     H.C. OF JUDICATURE AT BOMBAY THROUGH REGISTRAR v. UDA Y SINGH       811

record would be necessary to reach a conclusion whether or not the              A
delinquent has committed misconduct. The test laid down by various
judgments of this Court is to see whether there is evidence on record to
reach the conclusion that the delinquent has committed misconduct and
whether as a reasonable man, in the circumstances, would be justified in
reaching that conclusion. The question, therefore, is: whether on the basis
of the evidence on record, the charge of misconduct of demanding an             B
illegal gratification for rendering a judgment favourable lo a party has been
proved? In that behalf, since the evidence by Kundanben, the aggrieved
defendant against whom a decree for eviction was passed by the respon-
dent alone is on record, perhaps it would be difficult to reach the safe
conclusion that the charge has been proved. But there is a contem-              c
poraneous conduct on her part, who complained immediately to her advo-
cate, who in turn complained to Assistant Government Pleader and the
Assistant Government Pleader in turn complained to the District Govern-
ment Pleader, who in turn informed the District Ju~ge. The fact that the
District Judge made adverse remarks on the basis of the complaint was
established and cannot be disputed. It is true that the High Court has          D
directed the District judge to substantiate the adverse remarks made by
the District Judge on the basis of the statements to be recorded from the
advocates and the_ complaint. At that stage, the respondent was not working
at that station since he had already been transferred. But one important
factor to be taken note of is that he admitted in the cross-examination that    E
Shri Gite, District Government Pleader, Nasik had no hostility against the
respondent. Under these circumstances, contemporaneously when Gite
had written a letter to the District Judge stating that he got information
about the respondent demanding illegal gratification from some parties,
there is some foundation for the District Judge to form an opinion that the
respondent was actuated with proclivity to commit corruption; conduct of        F
the respondent needs to be condemned. Under these circumstances, he
appears to have reached the conclusion that the conduct of the respondent
required adverse comments. But when enquiry was done, the statements
of the aforesaid persons were recorded; supplied to the respondent; and
were duly cross-examined, the question arises: whether their evidence is        G
acceptable or not? In view of the admitted position thaHhe respondent
himself did admit that Gite had no axe to grind against him and the District
Judge having acted upon that statement, it is difficult to accept the con-
tention that the District Judge was biased against the respondent and that
he fabricated false evidence against the respondent of the three advocates
and the complainant. When that evidence was available before the discipli-      H
                                                                                       p
    812                   SUPREME COURT REPORTS                    [1997] 3 S.C.R.

A nary authority, namely, the High Court, it cannot v~ said that it is not a
    case of no evidence; nor could it be said that no reasonable person like the
    Committee of five Judges and thereafter the Government could reach the
    conclusion that the charge was proved. So, the conclusion reached by the
    High Court on reconsideration of the evidence that the charges p1ima f acie
    were proved against the respondent and opportunity was given to him to
B   explain why disciplinary action of dismissal from service could not be taken,
    is well justified.

           Under these circumstances, the question arises : whether the view
    taken by the High Court could be supported by the evidence on record or
    whether it is based on no evidence at all? From the narration of the above
C   facts, it would be difficult to reach a conclusion that the finding reached
    by the High Court is based on no evidence at all. Th2 necessary conclusion
    is that the misconduct alleged against the respondent stands proved. The
    question then is: what would be the nature of punishment to be imposed
    in the circumstances? Since the respondent is a judicial officer and the
D   maintenance of discipline in the judicial service is a paramount matter and
    since the acceptability of the judgment depends upon the credibility of the
    conduct, honesty, integrity and character of the office and since the con-
    fidence of the litigant public gets affected or shaken by the lac~_ of integrity
    and character of the judicial officer, we think that the imposition of penalty
E   of dismissal from service is well justified. It does not warrant interference.

          The appeal is accordingly allowed. The judgment of the Division
    Bench of the High Court stands set aside and that of the High Court
    dismissing the respondent from service stands upheld. No costs.

    R.P.                                                          Appeal allowed.
F