9911796707
TMI Blog1986 (12) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... ject, the practical examination was held by the University at K.E.M. Hospital, Bombay. This is a well-known hospital in Bombay and we are told that it is run by the Municipality. The total number of candidates registered for the examination was 52 of which 5 remained absent. One Dr. Mahesh Madhav Gosavi, original petitioner, who was at the relevant time Assistant Medical Officer of K.E.M. Hospital, Bombay was the petitioner. He and Smt. Dr. Chandrakala Patil alias Dawale, a Junior Assistant Medical Officer in the said K.E.M. Hospital, Bombay, who was re- spondent No. 4 to the original petition and one Dr. Mrs. Smita Thakkar who was respondent No. 5 were three candidates amongst others who had appeared for the examination. One Dr. M.Y. Rawal was the head of the Department of Gynaecology and Obstetrics in the said hospital and was the convener of the Board for the said examination. Respondent No. 4 of the original petition, Smt. Chandrakala Patil is the daughter of the appellant, the erstwhile Chief Minister of Maharashtra. The appellant was at the relevant time the Chief Minister of Maharashtra. On 15th November, 1985, a circular was issued by the Univer- sity of Bombay convening ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grade sheets were manipulated and tampered with as a result of which the said Dr. Chandrakala Patil and Dr. Smita Thakkar were passed by respondent No.2 Dr. Rawal at the instance and behest of respondent no. 3 in that petition, the appellant in the first appeal, being the Chief Minister of Maharashtra at the relevant time. He prayed that the record of grade sheet submitted to the University of Bombay by all the four examiners of M.D. in Obstetrics and Gynae- cology examination, necessary papers and rules and regula- tions, should be produced and to set aside the result of the M.D. examination to the extent that those students who had secured P minus grade be disqualified. It was further asked to declare those students who secured upto any number of P minus to be passed. A prayer was made in the writ petition filed in the High Court for producing grade sheets. The petitioner incidentally verified the petition stat- ing that the contents of paragraphs 1 to 22 and paragraphs 24 to 30 were true to his own knowledge while various other relevant paragraphs were verified as information received from reliable sources but the source was not disclosed. In these circumstances the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f information from reliable source, the peti- tioner has made allegations on Chief Minister of Maharashtra, therefore, he has been made respondent No. 3 in this writ petition. These were the only allegations upon which the petition was factually based. The necessary verification has been set out hereinbefore. The appellant Shri Shivajirao Nilengekar Patil filed an affidavit denying the allegations in para- graphs 14 and 25 of the application stating that he had played no part in the said examination as alleged or other- wise. It was also stated in the aforesaid affidavit that the petitioner has not disclosed the 'so-called' reliable sources of information. No affidavit was filed by the peti- tioner himself. The alleged source of information was not disclosed at any time. As mentioned hereinbefore an affida- vit was filed by one Dr. Manikant Mishra on 28th February, 1986 in support of the allegations. Further affidavit was sought to be tendered on behalf of the petitioner to the learned single judge regarding certain additional facts after the final hearing had started before the learned single judge of the High Court of Bombay. It may be men- tioned as a matter of histo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in appeal No. 216 of 1986 delivered judgment holding in para 35 of the judgment that the conclusion arrived at against Shri Nilangekar Patil was to be regarded merely as an adverse comment and not as a finding of fact. To that extent the finding of the learned single judge was upset. The special appeal has been preferred by the original petitioner against the appellant challenging the findings respectively. In the appeal by the original petitioner an affidavit had been filed in this case claiming the right to adduce additional evidence. The controversy before this court is rather narrow--namely; was there justification for the remarks made by the learned trial judge against the appellant Patil in his judgment to the extent that manipulations in the grade- sheets of M.D. examination was done at the behest of the appellant, the then Chief Minister of Maharashtra to help respondent No. 4 to pass the M.D examination can the same be justified either as a finding of fact or as a comment? In order to consider the same must be examined in little de- tail. Something is rotten in the state of Denmark sensed Marcellus in Scene V of Act 1 in Shakespeare's Hamlet. It can well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Thak- ker. The other respondents no. 6 to 15 mentioned hereinbe- fore were other successful candidates whose result came to be nullified and made subject to re-examination by the judgment of the learned single judge. We are not concerned with this aspect or with them any more. The petitioner had claimed that he had wrongly been declared as failed. The petitioner stated that he had some doubts as to whether his code number was properly decoded and he made various other allegations. The petitioner complained and the gravamen of his charges was that there were large number of irregulari- ties in the declaration of result and mark-sheet was tam- pered in favour of respondent no. 4 Chandrakala Patil who is the daughter of the erstwhile Chief Minister and that Dr. Rawal was instrumental in tampering with the result which was done at the behest of the then Chief Minister. The learned judge came to the conclusion that Dr. Rawal alone was responsible for tampering with and altering the tabulat- ed grade-sheet of theory examination. After discussing all these aspects in detail at the concluding paragraph 15 of the judgment, the learned judge had observed that he had no hesitation in conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any message. The learned single judge observed in his judgment the less said about this affidavit was better. The learned judge further observed that it was impossible to place any reli- ance on the evidence of Dr. Mishra as it was not known how he came to contact the original petitioner--respondent herein or why he did not choose to file affidavit till 28th February, 1986. Dr. Rawal had denied in his evidence that this Mishra came to see him and pointed out that on that relevant date, that he was heavily occupied and he had hardly any time to contact any visitor. Smt. Chandrakala Patil also denied the meeting that 'transpired between her and Dr. Rawal. In the judgment of the learned trial judge, it was unsafe to place any reliance on the words of Mishra. We respectfully agree. The learned judge thereafter concluded that there was no direct evidence to establish the involvement of respondent no. 3, the erstwhile Chief Minis- ter or the daughter, respondent no. 4 in the original writ petition in securing favourable result from Dr. rawal. The learned judge noted that counsel appearing on behalf of the petitioner before the trial judge had accepted this position but had urged th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble. He was of the view that Dr. Rawal was an experienced examiner and he was not young or immature and it was impossible to accept the view that a person like Dr. Rawal would proceed to do a criminal act and tamper with the record of the examination on his own with a view merely to please the people in power. No same person, according to learned judge, was likely to take such risk unless he was prompted to do so and given an assurance of protection by the persons in power. The learned judge was of the view that the risk involved in what Dr. Rawal had done was so enormous that it was difficult to conceive that he did it on his own. It was further urged by learned counsel before learned trial judge that respondent no. 4, Chandrakala Patil had failed in the examination on three previous occasions when her father was Law Minister and yet previously the said Nilangekar Patil, respondent no. 3 had not used his influence and power, therefore it was difficult to accept the position that he would do it on this occasion. This hypothetical question, according to the learned trial judge, overlooked the fact that every examiner was not necessarily obliging or subservient as Dr. Rawal was. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es aforesaid was based on certain contingencies. According to the division bench the reason- ings adopted by the learned trial judge were too tenuous for the conclusion based on such reasoning to amount to a posi- tive finding. The Division Bench observed that merely be- cause respondent no. 3 in the original petition had held a position of great power and would have been happy to see that his daughter respondent no. 4 and passed the M.D. examination, it was little difficult to conclude as a find- ing of fact that he must have influenced respondent no. 2 to alter the grades of his daughter. The learned Division Bench noted that it was true that a seasoned examiner like Dr. Rawal would not have taken the risk involved in altering the grades except under a great pressure of persuasion. The position that grades were altered was upheld by the division bench. The Division Bench, however, was of the opinion that there might have been various motives which might have induced Dr. Rawal to take the risk and alter the grades. The division bench observed that theoretically it was possible to conclude as was urged by Mr. Dhanuka, the learned coun- sel, that the respondent no. 4 might have used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Thakkar was also upheld. So far as the learned trial judge, held that the same was done at the behest of the erstwhile Chief Minister, the same was not upheld as a finding of fact but remarks to that fact made by the learned trial judge were not interfered with. An affidavit was filed claiming the right to adduce certain additional evidence and introducing certain writings from the magazine INDIA TODAY etc. Such additional evidence were sought to be introduced as part of the claim of public interest litigation because it involved the conduct of the Chief Minister in respect of the affairs of the University. Such claim for introduction of additional evidence, was, however, not entertained by the Division Bench. The Division Bench, however, in its judgment noted that the appellant was party to the writ petition and had an opportunity of explaining and defending himself. There were materials on record bearing on his conduct justifying the remarks which the Division Bench characterised as comments and not findings. A prayer was made before the Division Bench for deletion of such remarks. The Division Bench was of the view that as the appellant had opportunity to meet such remarks and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gekar Patil against the alleged adverse remarks and the other arising out of Special Leave Petition (Civil) No. 10665 of 1986 by the original petitioner are before this Court. There is an application for introduction of additional evidence. There are three points involved in these two appeals. Firstly, we have to determine in the appeal by the appel- lant, Nilangekar Patil, the erstwhile Chief Minister of Maharashtra, whether the observations made by the division bench about the comments on the conduct of the Chief Minis- ter were justified or not or should be expunged. Secondly, and connected with the first question is the question wheth- er the Division Bench of the Bombay High Court was right in upsetting the finding that the tampering with the grade- sheets was done at the behest of the Chief Minister was a finding based on no evidence; and thirdly whether, in the facts and circumstances of this case the court was justified in refusing to admit additional evidence and whether we should at this stage admit additional evidence. The additional evidence as we have mentioned hereinbe- fore consist of certain report in INDIA TODAY and certain other Magazines and certain affidavits. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in a situation of this type it is difficult to obtain direct evidence. So far as admission of additional evidence is concerned, we are unable to accept the position that such additional evidence should have been admitted in order to show the nature of the conduct of the Chief Minister in other cases in similar situations. The admissibility of evidence as to 'similar fact' has been considered by the courts. In this connection it may be instructive to refer to the observations of Lord Denning in Mood Music, Publishing Co. Ltd. v. Dc. Wolfe Ltd., [1976] 1 All England Law Reports 763 at 766., to the following ef- fect: The admissibility of evidence as to 'similar facts' has been much considered in the crimi- nal law. Some of them have reached the highest 'tribunal, the latest of them being Boardman v. Director of Public Prosecutions (1974)3 All ER 887, (1975) A C 421. The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... election in November, 1986. He has fur- ther submitted that the question in these appeals had to be viewed in the perspective of law and strictly on the basis of the record and should not be permitted to be politicised either by extraneous allusions or by. presumptions and pre- suppositions inconsistent with legal principles or by an attempt by political opponents to convert the proceedings into a political trial. It was his submission that the averments and the supporting affidavits which formed the basis of the allegations against the appellant were dealt with in the two courts below in the manner as we have indi- cated. He specially referred to the observations of the learned single judge about the affidavit in support of these allegations. He also relied on the observation on Dr. Mi- shra's affidavit and the adverse comments made by the learned single judge on Dr. Mishra's affidavit. He also referred to the finding of the Division Bench that the petitioner had no personal knowledge of this incident nor had he disclosed the source of the information. That the petitioner had filed the affidavit of one Manikant Misra and then drew our attention to the various allegations a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice. The allegations of the petitioner have been noted about the role of the Chief Minister. It is well to remember that Rajagopala Ayyangar, J. Speaking for this Court in CS. Rowjee Ors., v. Andhra Pradesh State Road Transport Corpo- ration [1964] 2 S.C.R. 330 observed at page 347 of the report that where allegations of this nature were made, the court must be cautious. It is true that allegation of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times. This Court made these observations as early as 1964. It is more true today than ever before. But it has to be borne in mind that things are happening in public life which were never even anticipated before and there are several glaring instances of misuse of power by men in authority and position. This is a phenomenon of which the courts are bound to take judicial notice. In the said deci- sion the court noted that it is possible to decide a matter of probabilities and of the inference to be drawn from all circumstances on which no direct evidence could be adduced. The court further noted that it was somewhat unfortunate that allegations of mal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the statement was in his belief, and the grounds of belief must be stated with sufficient particularity. This has been followed more or less universally by courts in matters where reliance is placed on affidavits. This view has been reiterated by this Court in The State of Bombay v. Purushottam Jog Naik. [1952] SCR 674 It is on this principle that Dr. Singhvi urged that the original petition should not have been entertained because of the defective affidavit in this case. Undoubtedly the affidavit and the petition were defective as mentioned hereinbefore. But the court has taken cognizance of the matter and certain inferences followed from the inherent nature of facts apparent from the facts brought before the Court. Reliance was also placed on the observations of this Court in E.P. Royappa v. State of Tamil Nadu Anr., [1974] 2 SCR 348. The Facts or that case need not be referred in detail except to mention that there allegation was made against the Chief Minister by a member of the Indian Admin- istrative Service in the cadre of the State of Tamil Nadu for not appointing him as the Chief Secretary. Ray, C.J. noted in the judgment several facts which were alleged as instan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de out by the appellant. This Court reiterated that the High Court would be justified in refus- ing to carry on investigation into the allegations of mala fide if necessary particulars of the charge making out a prima facie case Were not given in the petition. Since the burden of establishing mala fide lay very heavily on the person who alleged and the allegations made in regard there- to in the writ petition were not sufficient in that case to establish malus animus, this Court found that the High Court was justified in dismissing the petition without issuing notice. Dr. Singhvi submitted that precisely the same was the position in the instant case. Reliance was also placed on Sukhvinder Pal Bipan Kumar v. State of Punjab Ors., [1982] 2 SCR 31 where at page 40 of the report after dealing with the allegations in the writ petition, this Court observed that the allegations in the writ petition were not sufficient to constitute an averment of mala fides so as the vitiate the orders of suspension issued in that case. In such a situation the court was justified in refusing to carry out investigation into the allegations of mala fides if necessary particulars of the charge making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. So, therefore, whether the remarks were correct or not, is another issue but there was, no question of the remarks being beyond the issue and no question of the party against whom the remarks had been made had not been given an opportunity. Our attention was drawn to the decision of this Court in Vineet Kumar v. Mangal Sain Wadhera AIR [1985] SC 817 in aid of the submission that additional evidence should have been allowed but in our opinion the context in which the said observation was made was entirely different and cannot have any relevance to the facts of this Case. The Privy Counsil in The Bank of India and Others v. Jamesetji A.H. Chinoy and Messers. Chinoy and Co. AIR [1950] P.C. 90 reiterated that speculation is not enough to bring home the charge of fraudulent conspiracy. In a different context dealing with the election matter in Sri Harasingh Charan Mohanty v. Sh. Surendra Mohanty, [1974] 3 SCC 680 the question arose was whether the consent or agency was there. This Court observed that consent or agency of Shri Biju Patnaik could not be inferred from mere close friendship or other relationship or political affilia- tion. However, close was the relationship, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions having been made was not a party to the said proceedings but only a witness. Our attention was also drawn to certain English eases which have been noted by the Division Bench in the order under appeal and it is not necessary for us to refer to these in detail. The Division Bench noted that this Court had in the case of State of Uttar Pradesh v. Mohammad Naim (supra) had exhaustively dealt with the limitation in making these remarks i.e. (1) whether a party whose conduct in question was before the court had an opportunity of explaining or defending himself; (2) whether there was evidence on record hearing on that conduct justifying the remarks; (3) whether it was necessary for the decision of the case as an integral part thereof to refer to that conduct; and (4) the observations must be judicial in nature. These tests, the Division Bench observed were satis- fied in respect of the remarks made by the learned single judge. The Division Bench was of the view that the circum- stances relied before the learned single judge formed a reasonable and cogent basis for the adverse comment on the conduct of the appellant herein in the first appeal. Howev- er, the Division Bench made it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion of fact in view of the facts disclosed in this case, this Court in exercise of its judicial discretion under article 136 of the Constitution should not interfere in the facts and circum- stances of this case. He urged that neither the cause of justice nor public interest demanded interference under Article 136 of the Constitution. It is true that exercise of the power under article 136 of the Constitution is discretionary. There is no question in this case of giving any clean chit to the appellant in the first appeal before us. It leaves a great deal of suspicion that tampering was done to please Shri Patil or at his behest. It is true that there is no direct evidence. It is also true that there is no evi- dence to link him up with tampering. Tampering is estab- lished. The relationship is established. The reluctance to face a public enquiry is also apparent. Apparently Shri Patil, though holding a public office does not believe that ceaser's wife must be above suspicion . The erstwhile Chief Minister in respect of his conduct did not wish or invite an enquiry to be conducted by a body nominated by the Chief Justice of the High Court. The facts disclose a sorry ..... X X X X Extracts X X X X X X X X Extracts X X X X
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