A U KURESHI Vs. HIGH COURT OF GUJARAT

JUDGEMENT

(1.) THE petitioner was a judicial officer joined as Civil Judge (J.D.) in Gujarat Judicial Services on 13.06.1991, and came to be dismissed from the services by order dated 15.11.2001 passed by the respondent No.2 State of Gujarat upon recommendation made by the High Court of Gujarat vide letter dated 20.11.2001. He has filed this petition under Article 226 of the Constitution of India with a prayer to quash and set aside the order of dismissal, and to direct the respondents to reinstate the petitioner to his original post with continuity of service and with all consequential benefits, including the back wages.

(2.) IT would be necessary to state brief facts to decide the controversies involved in this writ petition. 2.1 The High Court of Gujarat decided to hold a departmental inquiry against the petitioner, on the following charges: That while working as Civil Judge (JD) and JMFC, Bharuch, from 13.06.1991 to 13.06.1993, in Criminal Case No.2059 of 1989, accused Ahmed Mirsab Saiyed and 14 others were charge sheeted for the offence punishable under Section 12 of the Bombay Prevention of Gambling Act, 1887, and after recording the pleas of the panch witness - Chimanbhai Nathubhai Rana, on 27.04.1992 and the formal witness Shri J.D.Sutaria, P.S.I. on 05.05.1992 just after two days, i.e. on 07.05.1992, without issuing summons to the important witnesses, whose presence for recording evidence could have been secured easily, the petitioner closed the right of the Prosecution for producing evidence and then acquitted the accused on 15.05.1992. Further, as per the complaint, panchnama and other evidence, the amount of Rs.32,862/- (Muddamal Article No.23) was seized by the police from the spot of crime on 04.11.1988 and not from the person of accused No.2, Musa Mohamad Malji. However, with an oblique motive, relying on the statement of the said accused, the petitioner ordered to return the said stake amount, i.e. Rs.32,862/- to the accused Musa Mohamad Malji, though he had no rightful claim for the same. Not only that to make a favour to Musa Mohamad Malji, with an oblique motive, the petitioner handed over the said amount to him, just after eighteen days, i.e. on 30.06.1992 before completion of the appeal period without imposing any conditions as provided under sub-section (2) of Section 452 of the Criminal Procedure Code and in contravention of the provisions of Section 452(4) of the Criminal Procedure Code and those of paragraph 227(i)(a) of the Criminal Manual, 1977. Following charges were levelled against the petitioner:

(3.) BEFORE we consider the rival submissions, details of the record of the case, it is necessary to consider the case law on the subject about initiation of disciplinary proceedings in case of a judicial officer and the duty cast upon constitutional court exercising control over subordinate courts under Article 235 of the Constitution of India. 5.1 In case of P.C.Joshi [supra], the Apex Court noticed earlier decision in the cases of Union of India and Ors. v. A.N.Saxena [AIR 1992 SC 1233] and Union of India v. K.K.Dhawan [AIR 1993 SC 1478] and indicated the basis upon which a disciplinary action can be initiated in respect of judicial or a quasi judicial actions, in paras 5 and 6 held as under:-