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TMI Blog2016 (7) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that a charge of misconduct is proved, the sufficiency of the evidence would not fall for re-appreciation or re-evaluation before the High Court. Applying these tests, it is not possible to fault the decision of the Division Bench of the Gujarat High Court on the charge of misconduct. The charge of misconduct was established in disciplinary Inquiry 15 of 2000. The punishment must be proportionate to the misconduct established. Having due regard to the nature of the misconduct which has been found to be established and the totality of circumstances we are of the view that the punishment of dismissal should stand substituted by an order of compulsory retirement. The Appellant has attained the age of superannuation and would be entitled to his retirement benefits on that basis. We accordingly allow the Appeals in part. We confirm the judgment of the High Court in so far as it rejects the challenge by the Appellant to the finding of misconduct. However, for the reasons which we have indicated above we direct that the order of dismissal from service shall stand substituted with an order of compulsory retirement which shall take effect from 14 July 2009, the date on which the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o trial to be guilty of the charges. However, save and except for five of the accused persons, the Appellant awarded less than the minimum punishment prescribed under Section 135. All the accused were granted a set-off. Details of the sentences awarded are contained in the following table: Sl. No. Accused No. Name of the accused Period of sentence Amount of fine In default of fine, further sentence Set off is allowed 1 1 Surendra Gurudeepsinh 2 Years 10,000/- 1 Year Yes 2 2 Bhupendra Pyarelal 2 Years 10,000/- 1 Year Yes 3 4 Natha Samat 2 Years 10,000/- 1 Year Yes 4 5 Jivan Devdan 2 Years 10,000/- 1 Year Yes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod. Consequently, the allegations against the Appellant were that: Thus, the manner and mode in which you awarded the sentence in Crl. Case Nos. 675/94 1293/95, clearly show that the accused had managed with you for showing favour in awarding sentence and accordingly, you awarded the punishment fixing the term of sentence in such a way that the accused need not have to remain in custody for any longer period and thereby: (a). You are guilty of indulging in Corrupt-practice. (b). You are guilty of dereliction in discharging your judicial functions. (c). You acted in a manner unbecoming of a Judicial Officer. These acts of yours, would amount to acts of grave misconduct and tantamount to conduct unbecoming of a Judicial Officer, violating the provisions contained in Rule 3 of the Gujarat Civil Services (Conduct) Rules, 1971. 6. The Appellant denied the charges in his reply to the chargesheet. An Inquiry Officer was appointed. During the course of the inquiry, witnesses were examined in support of the charges, among them being the Special government prosecutor and Superintendent of Customs. The Inquiry Officer in his report dated 28 January 2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved at a decision on 1 July 2009 holding the Appellant guilty of the charges of misconduct. The Committee held that as a seasoned judicial officer who was in service since 1981, the Appellant would be aware about the basic principles of sentencing. The Committee rejected the explanation of the Appellant that even if an error was committed by him in awarding less than the prescribed sentence, this was of a bona fide nature. In the view of the Committee, the Appellant ought to have seen the provisions of the Customs Act 1962, and having held the accused guilty, he ought to have considered the provisions for punishment laid down in the statute. The Committee found it difficult to accept that as a judicial officer, the Appellant had passed an order of conviction and sentence without looking at the provisions. The Committee held that an inference could be drawn on the basis of material with regard to the existence of an oblique motive since neither a sufficient nor reasonable explanation was provided by the Appellant. Alternatively, the Committee held that even assuming that there was no oblique motive, the established facts reflected gross negligence and a dereliction of duty on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be dismissed from service. The Full Court of the High Court resolved that the charges against the Appellant were proved and decided to dismiss the Appellant from service. The State Government acting on the decision of the High Court issue an order of dismissal on 14 July 2009. 10. The Appellant initiated proceedings under Article 226 of the Constitution in order to assail the findings which were arrived at in the disciplinary proceedings and the punishment of dismissal. By its judgment and order dated 23 February 2012 the Division Bench held that the charge of misconduct in Disciplinary Inquiry 6 of 2001 was not established. The High Court, after adverting to the report of the Disciplinary Committee noted that there was no evidence in regard to which cases under the Prevention of Food Adulteration Act were part-heard before the Appellant. This conclusion of the Disciplinary Committee was held to belie the charge that the Appellant was being selective about retaining part-heard cases. On the second charge, the Division Bench observed that the Disciplinary Committee had expressly concluded that there was insufficient evidence to hold the Appellant guilty of an oblique motive or c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered as special and adequate reasons. The High Court upheld the view of the Disciplinary Committee (which were accepted by the Full Court) that an inference of oblique motive would have to be drawn from the record, having due regard to the fact that (i) the Appellant had recorded no special or adequate reasons for awarding less than the minimum sentence; and (ii) the sentences which were awarded to the accused were such that none of them would have to undergo any further term of imprisonment after taking into account the period undergone as an under-trial. In the view of the High Court, the conclusions of the Committee which were accepted by the Full Court cannot be held to have been based on no evidence; there were strong circumstances indicating that the Appellant imposed punishments in serious offences under the Customs Act 1962 contrary to statutory mandate; his explanation that he was not aware of the statutory provision (having been recently promoted as CJM) was not acceptable; there were glaring discrepancies in the award of punishments to various accused; and, most significantly, the sentence imposed on each accused was such that none of them would remain in jail any longe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iplinary Committee would submit its provisional conclusions in a report which would laid before the High Court and this would become a decision of the Court after a stipulated period. The second stage for the Disciplinary Committee to prepare and submit its report would be after issuing a notice to show cause to the officer and granting him a personal hearing after which the Disciplinary Committee would prepare a report containing its reasoned conclusions regarding the punishment. Once again the report would be tabled before High Court and would become a decision of the Court after passage of a stipulated period. The recommendation which is submitted by the Disciplinary Committee on whether or not to accept the Report of an Inquiry Officer is not binding on the High Court. The Full Court has an obligation to apply its mind to a report which has been submitted by the Disciplinary Committee and to determine whether it should or should not be accepted. Hence, there is no merit in the submission that the Full Court was bound by the decision of its Disciplinary Committee. 14. The second submission relates to the merits of the charges against the Appellant which have been found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e distinguished from a purely erroneous decision whether on law or on fact. The legality of a judicial determination is subject to such remedies as are provided in law for testing the correctness of the determination. It is not the correctness of the verdict but the conduct of the officer which is in question. The disciplinary authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power. The circumstances let into evidence to establish misconduct have to be sifted and evaluated with caution. The threat of disciplinary proceedings must not demotivate the honest and independent officer. Yet on the other hand, there is a vital element of accountability to society involved in dealing with cases of misconduct. There is on the one hand a genuine public interest in protecting fearless and honest officers of the district judiciary from motivated criticism and attack. Equally there is a genuine public interest in holding a person who is guilty of wrong doing responsible for his or his actions. Neither aspect of public interest can b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely as a carrier of goods or otherwise was a secondary party to the commission to the offence; (iv). the age of the accused. 17. It is not in dispute that the cases in question related to goods to which Section 123 applied and the market price whereof exceeded rupees one lakh. The offences were punishable with imprisonment for a term which may extend to seven years and with fine. The proviso spells out that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for less than three years. Sub-section 3 of Section 123 provides what would not be considered as special and adequate reasons for awarding a sentence of imprisonment for a term of less than one year. The Appellant was evaluating, in Criminal Case 675 of 1994, a situation involving the smuggling of 275 silver slabs worth ₹.5,86,50,620/-. The explanation of the Appellant that he was recently promoted to the cadre of CJM and was not aware of the provisions of Section 135 was not accepted by the Disciplinary Committee (or by the Full Court). As a judicial officer who was in service for over fourteen years, the Appellant could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duct was established in disciplinary Inquiry 15 of 2000. 20. That leads us to the issue of the punishment which has been imposed on the Appellant. The Appellant has been dismissed from service. The submission of the Appellant is that having regard to the fact that he has an unblemished record of service, the imposition of the punishment of dismissal would be disproportionate to the misconduct which has been found to be established. Rule 6 of the Gujarat Civil Services (Discipline and Appeals) Rules 1971 enunciates disciplinary penalties. Among them is (i) compulsory retirement; (ii) removal from service which shall not be a disqualification for future employment under Government; (iii) dismissal from service which shall ordinarily be a disqualification for future employment under Government. The punishment must be proportionate to the misconduct established. Having due regard to the nature of the misconduct which has been found to be established and the totality of circumstances we are of the view that the punishment of dismissal should stand substituted by an order of compulsory retirement. The Appellant has attained the age of superannuation and would be entitled to his retire ..... X X X X Extracts X X X X X X X X Extracts X X X X
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