R K DIVYESHWAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By means of this petition, the petitioner has challenged the order dated 5-4-1993 of the Secretary to Government of Gujarat, dismissing him from service under Rule 6 of the Gujarat Civil Service (Discipline and Appeal) Rules, 1971.

(2.) The facts of this case, briefly stated, are as under : The petitioner had practised as an Advocate in the High Court of Gujarat. He was selected as a Judicial Magistrate, First Class in the year 1981 and he took charge on 15-12-1981 and since then was working as Judicial Magistrate, First Class till the impugned order of dismissal from service was passed on 5-4-1993. At the relevant time, he was working as Civil Judge (J.D.) and Judicial Magistrate. First Class, Anand. On 14-11-1991. at about 9-30 p.m. the petitioner reached at the house of Ms. S. C. Srivastav, Joint Civil Judge (J.D.) and Judicial Magistrate, First Class, Petlad. Hence, she was surprised to see him at odd hours. She inquired as to why he had come, but he could not give any satisfactory answer. The conduct of the petitioner was seen unnatural and he appeared to be in drunken condition. She was very much embarrassed as her residence was in a lonely place. There was another quarter of Mr. Vasa falling on the way to her quarter. He did not opt to visit Mr. Vasa's house first. From the behaviour of the petitioner, she felt unsafe in his presence. Hence, she sent her servant Mr. Anwar who was also present there to call Mr. Vasa, Civil Judge (J.D.), Petlad. On her request, he came from his house. Her impression was that had she been alone, the petitioner would have misbehaved a lot. Both the petitioner and the complainant were not much known to each other. She knew him as a colleague Judge only. According to her, he had no reason to visit her house. Both of them had never been posted at one station together. She was very much annoyed by this chapter of uncalled visit by the petitioner and she was very much mentally disturbed due to the incident and she went to narrate about the incident to the District Judge, Kheda at Nadiad on 18-11-1981, who directed her to give a complaint in writing. Accordingly, she went again on 19-11-1991 and reported in writing the matter to the District Judge. Kheda at Nadiad which is Annexure "L" to the petition. The District Judge, Kheda at Nadiad also recorded the statement of Ms. S-. C. Srivastav then and there. At that time, Mr. A. G. Vasa, Civil Judge (J.D.) and J.M.F.C., Petlad was also present. His statement was also recorded at that time. The statement of Mr. Ahmedmiya Malek was recorded on 25-11-1991 by the District Judge, Kheda at Nadiad. The matter was referred to the High Court by a letter dated 16-12-1991. The Joint Registrar, High Court of Gujarat under the direction of the then Acting Chief Justice of the High Court of Gujarat informed the petitioner about the decision to hold a departmental inquiry against the petitioner on the following charges :-

(3.) The petitioner sent a letter dated 13-1-1992 to the Registrar of this Court through District Judge, Kheda at Nadiad. He denied the statement of imputations categorically as false, baseless and incorrect. He admitted in his statement that on 14-11-1991 at about 9.00 p.m. he had gone to the residential quarter of Ms. S. C. Srivastav, Joint Civil Judge (J.D.) and J.M.F.C., Petlad, but it was not true that he tried to misbehave with her or his conduct was in any manner goes to show an impression of attempting to misbehave with her. It is also admitted by him that he has left his headquarter without obtaining previous sanction of the District Judge, Nadiad, but he had telephoned him and was subsequently to obtain ex-post facto sanction which he, could not take because of certain reasons. He also denied that he was not known to her and she was not known to him. On the contrary, both the petitioner and lady officer started practice in the High Court together. She was selected as Civil Judge (J.D.) in the same batch as he was. Due to several meetings, calls by the District Judge at Nadiad, Cambay, they had more than one occasion to meet each other. Originally being the members of the same Bar, both of them knew each other. He started his practice in Ahmedabad in the year 1979 and from 1978 to 1981, he practiced in various Courts and in the year 1980-81, he started his practice in the High Court. From his initial posting at Mahesana to the present station from transfer, that was Anand, he had endeavoured to perform his duties to the best of his abilities judicially and with integrity and there was no adverse remarks during the entire spell of his service. While narrating about the incident, he stated that his maternal sister was residing at Petlad near Shri Ranchhodji temple. The distance from Anand to Petlad is about 20 kms. While to and fro distance from Anand to Khambhat is more than 120 kms. On the date 14-11-1991, at about 7.00 p.m. his brother-in-law Mr. Pravinchadra Trivedi of Petlad, husband of his maternal sister Chandrikaben Trivedi had come to meet him at his residence at Anand and he was to leave for Petlad. Hence, he offered to accompany him on his scooter as he had no vehicle. He had no occasion to go and meet his maternal sister since Diwali. He rang the District Judge, Nadiad before leaving but he came to know from his daughter that the District Judge was not available. That phone was made for obtaining sanction and informing the District Judge that he was to leave for a couple of hours headquarters for Petlad. He also filed a xerox copy of the bill for the phone made from Anand to Nadiad and that phone call was recorded in P.W.D. guest house register on the same date. It was physically impossible to reach Khambhat at a distance of more than 60 kms. from Anand and return to Petlad by round about 9.00 p.m. He had gone to Petlad to leave his brother-in-law on scooter and also to meet his wife (his maternal sister) where he had a dinner. When he was leaving the residence of maternal sister at about 9.00 p.m. on 14-11-1991, in the way he started to have some uneasiness feeling and took a chance that as the residence of his colleague Mr. Vasa was on the way, he desired to go there and also wanted to take this opportunity to meet him. But he found that there was no light at Mr. Vasa's quarter and probably other family members might be in an inner room or might be out of house. Since the light was on in the nearby residence of Ms. Srivastav, he first visited her. There was no action or conduct much less any misbehaviour on his part which could even by ghost of imagination leading anybody to believe of his attempting to misbehaviour. Regarding the allegation made at serial No. 2, he stated in writing to the District Judge for obtaining ex-post facto sanction would at the most be said to be a technical irregularity which may be graciously condoned. In view of the fact, prior to leaving Anand for Petlad, he had tried to contact the District Judge on telephone at his residence but he was not available. Hence, his daughter on his behalf received the phone. On the next day on 15-11-1991, immediately going to the dais, he was called in the chamber of Civil Judge (S.D.) Anand and was informed that his mother was operated at Ahmedabad. Mr. Pathan, Civil Judge (S.D.), Anand received phone call by him on his behalf. Hence, he was called upon at about 11.30 a.m. on 15-11-1991. He belongs to a respectable family. His father was a doctor. His cousin brother is an eminent Gynaecologist and other cousin brother was'a Director of Commerce Faculty, Gujarat University and his brothers were also well established in the society. He would never think to misbehave with any person much less a judicial officer, more specifically with Ms. Srivastav in the manner as alleged. He is a disciple of Swaminarayan sect. The allegations of Ms. Srivastav were vague in itself and further on the contrary, it is even admitted by Ms. Srivastav that she presumed intoxication and she presumed likelihood of misbehaviour. There was no specific allegation made in that regard. There was no clear-cut allegation either made in that regard to presumption of intoxication based on incorrect inference. Such statement which no person of common sound or prudent sense would place reliance upon. He also indicated that the charges levelled against him were totally false and baseless and Ms. Srivastav might have been tempted to level'charge against him long after the alleged incident with ulterior motive or for the simple reason that he had reached the place at a time when her undisclosable secrets would have been revealed and being allegations of a lady Judge would be credence too. If anything would have taken place those facts must have been disclosed by her to Mr. Vasa who was called there or to Mr. Maiek who was present at the time of the incident. In the present case, no preliminary inquiry was conducted by the authorised officer. Moreover, the learned District Judge who purported to record the statement had done so for which the District Judge was not authorised otherwise to record the statement without specific orders or authorisation of the High Court. The statements so recorded without authority could not be the basis for inquiry against him. He requested for the copies at his costs or inspection or to grant him permission to inspect the said statements which may be in the shape of any report sent by the District Judge and none of the charges and allegations made against him can be accepted against him. Hence, none of the charges and allegations made against him can be relied upon and none of the acts being committed by him amounts to acts of unbecoming of a judicial officer being of any misconduct or violative of provisions of Gujarat Civil Service (Discipline and Appeal) Rules, 197). He also requested for an opportunity of personal hearing prior to taking action against him on the basis of allegations which were false, baseless and untrue and he also requested for personal presence and through an Advocate of his choice and for an opportunity to examine defence witnesses during the inquiry in support of his defence.