CIVIL APPEAL NO 5608 OF 2007 [Arising out of SLP (Civil) No. 4874
2. Appellant herein is a judicial
officer. His services were terminated by the Government of Maharashtra
on the recommendations made by the High Court of Bombay relying on or on
the basis of a report of an inquiry officer appointed to inquire into
the charges levelled against him.
3. Appellant joined the judicial
service in the State of Maharashtra on 16th November, 1995. His wife was
also a judicial officer. She, however, resigned in December, 2003.
4. In relation to orders of transfer
passed against him, the appellant on various occasions had been issued
several memos. It is not necessary for us to deal therewith.
5. Several strictures were also
passed against him, on the judicial side. Several adverse remarks were
also passed. A complaint was made on 24th January, 2001 wherein the
following allegations were made against the
appellant, that he was in the habit of :
(a) "refusing to grant leave.
(b) Issuing notices intentionally
(c) Noting remarks in red ink in the service books of employees
(d) Insulting the employees
(e) Writing "not satisfactory work" in the report for increment and not
sending the said report within time.
(f) Rejecting the applications for grant of G.P.F.
(g) Converting leave into leave without pay
(h) Insisting employees to produce medical certificates and produce
receipt of bills.
(i) Threatening Assistant Superintendent "
6. The disciplinary committee of the
High Court opined that a departmental proceeding should be initiated
against him. Statement of imputations, the charge sheet, list of
witnesses and list of documents as approved by the disciplinary
committee were served upon him. The imputation of charges served upon
him are :
"(a) During his tenure at Patan, the
Petitioner was not interested in discharging his duties and had
submitted as many as six representations for transfer, all of which were
(b) The Petitioner had used
intemperate language while communicating with the High Court under his
representation dated 02.05.2000.(c) The Petitioner was in the habit of
frequently leaving the Headquarters, thereby causing inconvenience to
Advocates and litigants. The Petitioner used to behave whimsically and
adamantly and was harassing the litigants, Advocates and employees only
with an intention to get transfer at a convenient place. The Petitioner
was unable to run the office administration effectively and smoothly and
had as such exhibited his incompetence in administrative discharge of
7. The District Judge of Satara was
appointed as an inquiry officer. He, having considered the materials on
record, opined that inter alia all the charges to the effect that while
submitting his representation to the High Court in regard to his
transfer, he had used intemperate language and had made allegations
against the administrative authority, were proved. He was also found to
have been harassing members of the Bar, litigants and even members of
the staff. It was opined that he was not in a position to run the
administration effectively and smoothly.
8. The disciplinary committee of the
High Court, upon consideration of the said report, in its meeting dated
16th August, 2004 decided to issue a second show cause notice to the
appellant. In response thereto, he stated to have been expecting such a
notice from the disciplinary committee and, thus, had no fear in his
mind therewith. He further stated that 'if the High Court wanted to
dismiss him he would have nothing to say because he was part of the
judiciary and had been knowing that the disciplinary authority would
take action against him'. He also contented that it was the High Court
who had persistently put him in difficulty by transferring frequently
and he was not bothered about any orders passed by the High Court. He
also threatened to initiate action against the High Court.
9. The representation made by the
appellant was rejected by the disciplinary committee in its meeting
dated 22nd November, 2005. A decision was taken to impose upon him a
major penalty of compulsory retirement from service as prescribed under
Rule 5(1)(vii) of the Maharashtra Civil Service (Discipline and Appeal)
Rules, 1979 (for short "the said Rules"). It was furthermore decided
that 2/3rd compulsory retirement pension as admissible under Rule 100 of
Maharashtra Civil Service (Pension) Rules, 1982 be given to him.
10. Pursuant to and in furtherance
of the recommendations made by the High Court, the State of Maharashtra
issued an order dated 14th December, 2005 to that effect which was
communicated to the appellant on 16th December, 2005.
11. Appellant filed a writ petition
being W.P. No. 8640 of 2005 on 17th November, 2005 before the High
Court. The same, however, was withdrawn on 21st December, 2005.
12. He filed another writ petition
on 28th February, 2006 which was marked as WP No. 1354 of 2006 claiming
a large number of reliefs. By an order dated 2.05.2006, the Division
Bench of the said Court issued a limited notice in regard to the prayers
made in clauses (h), (k), (t) and (z) and the first part of prayer (y)
of para 17 of the writ petition.
13. The said writ petition has been
dismissed by reason of the impugned judgment.
14. Mr. Naresh Govind Vaze,
Appellant, who appeared in person, inter alia questioned the
constitutional validity of the Rules.He also submitted that as a
departmental proceeding is a judicial proceeding and the inquiry officer
is court, the provisions of the Evidence Act would be applicable.
According to him, in terms of Rule 8 of the said Rules, it was
obligatory on the part of the inquiry officer to summon the witnesses
whom he intended to examine and the same having been refused, principles
of natural justice were violated. It was also urged that as he had filed
an affidavit by way of defence statement and having not been
cross-examined on behalf of the High Court, the averments made therein
must be held to have been accepted by it and in that view of the matter
the inquiry officer committed a serious error in holding him guilty of
the charges levelled against him.
The High Court also committed a serious error, it was submitted, insofar
as it failed to exercise its power of judicial review.
15. Appellant is a judicial officer.
Indisputably, he was served with a memorandum of charges. All the
requisite documents were served upon him. He had also been served with
the list of witnesses. Before the inquiry officer, witnesses were
examined. Appellant had prayed for issuance of summons by the inquiry
officer upon some Hon'ble Judges of the High Court of Bombay. The same
was refused by the inquiry officer. On a querry made by us as to for
what purpose he intended to examine the High Court Judges and how the
High Court Judges could have deposed in his favour in relation to the
charges framed against him, the appellant had no answer. Most of the
charges levelled as against the appellant were in relation to use of
intemperate language in his representations. He even in his
representation to the second show cause notice had used such language
which, in our opinion, does not behove a judicial officer.
16. Whereas independence and
objectivity on the part of a judicial officer is always welcome but the
same would not mean that a judicial officer is free to use abusive or
intemperate language against the High Court. He might have felt
aggrieved while orders of transfer were passed against him but the same
would not mean that while making representations before the High Court
he would use such language. It is expected that a judicial officer would
use such language which behoves a judicial officer.
17. Appellant did not question the
validity of the said Rules before the High Court. There is even
otherwise absolutely no ground therefor. His contention before us that
the said Rules having not been framed under a substantive statute, the
same is ultra vires is liable to be rejected as the said Rules had been
framed under the proviso appended to Article 309 of the Constitution of
India. The said Rules have, thus, the force of a statute.
18. Submission of the appellant that
the District Judge Satara could not have been appointed as an inquiry
officer by the High Court is again a contention without any substance.
By appointing a District Judge as an inquiry officer, the High Court did
not delegate its disciplinary power in his favour as contended by the
appellant. The District Judge being superior in rank to the appellant
could have been appointed as an inquiry officer by the High Court. We,
thus, do not see any reason to accept the contentions of the appellant
in this behalf.
19. Appellant has gone to the extent
of making a submission before us that the notice dated 16th December,
2005 is ultra vires the preamble as also Article 21 of the Constitution
of India. We fail to understand as to on what basis such a submission
was made. If he has been found guilty of commission of large number of
misconducts, the same cannot be questioned on the ground of violation of
Preamble as also Article 21 of the Constitution of India.
20. Similarly, submission of the
appellant that the departmental proceeding being a judicial proceeding,
the inquiry officer must be held to be a court and the provisions of the
Evidence Act would be attracted, is equally meritless. It is now a
well-settled principle of law that the inquiry officer appointed to
inquire into the charges levelled against a delinquent officer is
neither a court nor the provisions of the Evidence Act are applicable.
21. Submission of the appellant that
the inquiry officer failed to comply with the procedure for imposing
penalties as laid down in Rule 8 of the said Rules is equally without
Sub-rules (5), (6), and (7) of Rule
8 of the said Rules read, thus:"(5)(a) On receipt of the written
statement of defence, the disciplinary authority may itself inquire into
such of the articles of charge as are not admitted, or, if it considers
it necessary as to do, appoint, under sub-rule (2), an inquiring
authority for the purpose, and where all the articles of charge have
been admitted by the Government servant in his written statement of
defence, the disciplinary authority shall record its findings on each
charge after taking such evidence as it may think fit and shall act in
the manner laid down in Rule 9 of these rules;
(b) If no written statement of
defence is submitted by the Government servant, the disciplinary
authority may itself inquire into the articles of charge or may, if it
considers it necessary to do so, appoint under sub-rule (2) of these
rules an inquiring authority for the purpose;(c) Where the disciplinary
authority appoints an inquiring authority it may, by an order, appoint a
Government servant or a legal practitioner, to be known as the
"Presenting Officer" to present the case in support of the articles of
charge before the inquiring authority.
(6) The disciplinary authority shall
where it is not the inquiring authority, forward to the inquiring
(i) a copy of each of the articles of charge and the statement of the
imputations of misconduct or misbehaviour;
(ii) a copy of the written statement of defence, if any, submitted by
the Government servants;
(iii) copies of statements of witnesses, if any, referred to in sub-rule
(3) of this rule;
(iv) evidence proving the delivery of the documents referred to in
sub-rule (3) to the Government servant; and (v) a copy of the order
appointing the Presenting Officer.
(7) The Government servant shall
person before the inquiring authority on such day
and at such time within ten working days from the date of receipt by him
of the articles of charge and the statement of the imputations of
misconduct or misbehaviour, as the inquiring authority may, by a notice
in writing, specify in this behalf, or within such further time not
exceeding ten days, as the inquiring authority may allow."
22. Appellant did not elaborate as
to how the provisions of the said Rules had not been followed. Only
because the rule provides for summoning of the defence witnesses, the
same would not mean that the inquiry officer had no discretionary
jurisdiction in this behalf. An inquiry officer cannot summon witnesses
far less the Judges of the High Court who have nothing to do in the
matter. The delinquent officer must show that the witnesses to be
summoned have something to do with the issues involved in the
disciplinary proceeding. It is evident that such a request was made only
to embarrass the inquiry officer. As indicated hereinbefore, the
appellant, when questioned, could not inform us as to for what purpose
he intended to examine the High Court Judges.
23. For the reasons aforementioned,
we do not find any merit in this appeal which is dismissed with costs.
Counsel's fee assessed at Rs.10,000/- (Rupees ten thousand only).
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