Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos       6116-6117                  OF 2016 [Arising out of SLP (C) Nos.34674-34675 of 2012]

R R PAREKH         .....APPELLANT

Versus  

HIGH COURT OF GUJARAT & ANR.       .....RESPONDENTS  

J U D G M E N T

Dr D Y CHANDRACHUD, J

          Leave granted.

2 These  proceedings  arise  from a  judgment  of  the  High  Court  of

Gujarat dated 23 February 2012 in an application filed by the Appellant

challenging  the  punishment  of  dismissal  imposed  upon  him  upon  a

disciplinary inquiry.  The Division Bench of the Gujarat High Court found

that the charges against the Appellant have been established in one (but

Page 2

2

not the second) of two disciplinary inquiries in respect of his conduct as a

judicial officer in the district judiciary.  In view of its findings, the High

Court declined to interfere with the punishment of dismissal.   That has

given rise to these proceedings.

3 The Appellant was recruited as a Civil Judge (Junior Division) and

Judicial Magistrate in 1981 in the judicial service of the State of Gujarat.

He was promoted as a Civil Judge (Senior Division) in 1996.  The charges

which  emanated  against  him from a  chargesheet  dated  31  August  2001

related  to  his  work  as  a  judicial  officer  when  he  was  posted  as  Chief

Judicial  Magistrate  at  Bhuj  from  6  May  1996  to  15  June  1998.   Two

criminal  cases  involving  offences  punishable  under  Section  135  of  the

Customs Act 1962 and the Imports & Exports (Control) Act 1947 were tried

by him.   

4 In Criminal Case 1293 of 1995, the Appellant delivered a judgment

on 22 January 1997 convicting the accused, but awarded a sentence of

imprisonment  less  than  the  minimum  prescribed  by  Section  135.

Moreover,  the  sentence  of  imprisonment  was  so  structured  that  after

allowing the benefit of a set-off, the accused was not required to remain in

jail for a further period.  In the second criminal case, Criminal Case 675 of

1994,  the  trial  involved  offences  inter  alia under  Section  135  of  the

Customs Act 1962. Fourteen accused were alleged to be involved in the

smuggling of 275 silver slabs of a value of  ₹ 5,86,50,620/-.  The trial of

Page 3

3

two of the accused who are absconding was separated from the rest.  By a

judgment dated 11 March 1997 the Appellant held the twelve accused who

were  brought  to  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 5 13 Kana Mahadeva 2 Years 10,000/- 1 Year Yes 6 3 Gulam Chisti 4 Years 15,000/- 1 Year Yes 7 6 Iqbal Husain 4 Years 15,000/- 1 Year Yes 8 7 Jakab Bava 4 Years 15,000/- 1 Year Yes 9 10 Ismail Sale 3 Years 10,000/- 1 Year Yes 10 11 Nurmamd Yakub 5

Months 10,000/- 1 Month Yes

11 14 Jivan Madeva 3 Months

10,000/- 1 Month Yes

12 12 Osman Amar 5 Years 25,000/- 1 Year He  has  not remitted fine  

5 This formed the subject matter of departmental Inquiry 15 of 2000

in which a chargesheet was issued on 31 August 2001.  It was alleged that

the Appellant who was a senior judicial officer was aware of the provisions

of Section 135 which prescribe the award of at least a minimum sentence.

The case involved smuggling of a huge quantity of contraband articles.  The

Appellant, it was alleged, was aware of judicial decisions mandating that a

Page 4

4

liberal view should not be taken in the award of sentences in such cases.

Yet, with the intention of favouring the accused, the Appellant was alleged

to have awarded less than the minimum sentence without recording special

or adequate reasons.  Moreover, it was alleged that:

“Though, it was a case of a huge quantity of contraband articles i.e. 275 Silver Slabs worth Rs. 5,86,50,620/-, you awarded the sentence to each  of  the  accused,  keeping  in  mind,  the period undergone by each of the accused as under trial prisoner and granted benefit of set off so that none of the accused had to remain in custody for any further period.”

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,

Page 5

5

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 came to the conclusion

that there was no independent evidence to establish that the Appellant had

engaged in a corrupt practice.  The charges were held not to have been

established.   The  report  of  the  Inquiry  Officer  was  placed  before  a

Disciplinary Committee of the High Court consisting of two judges.  The

Disciplinary  Committee  did  not  agree  with  the  reasons  adduced  by  the

Inquiry Officer but nonetheless was of the view that the Appellant should

be exonerated. In the view of the Committee, a huge quantity of contraband

was involved and the Appellant  ought not to have taken a lenient view,

contrary to settled principles of law.  The Disciplinary Committee held that

though there was an absence of sufficient evidence to establish an oblique

motive or an allegation of corruption, an element of doubt existed from the

manner in which the Appellant had sentenced each of the accused, bearing

in mind the period of custody as under-trial prisoners.  The Committee was

of the view that the acts of the Appellant were not totally  bona fide and

proposed that this should be considered when the case of the Appellant for

promotion arose in future.  

7 The  report  of  the  Disciplinary  Committee  was  considered  at  a

Chamber meeting of the Full Court on 26 September 2005 when it was

resolved  to  remand  the  matter  to  the  same Disciplinary  Committee  for

Page 6

6

reconsideration.  The Disciplinary Committee considered the matter again.

The Disciplinary Committee took a fresh decision on 4 April 2006 to the

effect  that  there  being no evidence  about  corruption,  the  finding of  the

inquiry officer  was correct.  The Committee,  however, reiterated that the

conduct  of  the  Appellant  should  be  borne  in  mind  when  his  case  for

promotion came up for consideration.  When the report of the Disciplinary

Committee came up before the Full Court at a Chamber meeting held on 5

March 2007, a reconstituted Disciplinary Committee was called upon to

look  into  the  matter  again  and  to  issue  a  notice  to  show cause  to  the

Appellant.  Upon  the  resolution  of  the  Full  Court,  the  Disciplinary

Committee recorded tentative reasons to  disagree with the report  of  the

Inquiry Officer and called upon the Appellant to show cause why he should

not be held guilty of the charges levelled and be dismissed from the service.

The Appellant responded to the notice to show cause and was granted a

personal hearing.  The Disciplinary Committee arrived 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

Page 7

7

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

part of the Appellant. The Committee found the charge of misconduct was

established  and  came  to  the  conclusion  that  the  Appellant  should  be

dismissed  from  service  under  Rule  6  of  the  Gujarat  Civil  Services

(Discipline  and  Appeal)  Rules  1971.  The  report  of  the  Disciplinary

Committee was adopted by the Full Court.  The State Government by a

notification dated 14 July 2009 dismissed the Appellant from service.

8 The conduct of the Appellant as a judicial officer formed the subject

matter  of  another  disciplinary  inquiry  (Inquiry  6  of  2001)  in  which  a

chargesheet  was  issued on 5 November  2001.   The charges against  the

Appellant were that despite his transfer on 23 April 1993, the Appellant had

with an oblique motive requested the Chief Judicial Magistrate, Mehsana to

transfer  26  out  of  several  part-heard  cases  selectively,  pertaining  to

offences under the Prevention of Food Adulteration Act.  The allegation

Page 8

8

was that these cases were indicated as being part-heard though no material

evidence  had  been  recorded.   The  second  charge  was  that  in  68  cases

involving offences punishable under the Factories Act 1948 the Appellant

had imposed negligible punishments of fine ranging from  ₹ 100 to  ₹ 500,

contrary to the decisions of the High Court and had indulged in a corrupt

practice. The Appellant was charged with a dereliction of duty and of acting

in  a  manner  unbecoming  of  a  judicial  officer.   The  Inquiry  Officer

exonerated the Appellant.   

9 The  Disciplinary  Committee  of  the  High  Court  came  to  the

conclusion that there was insufficient evidence to hold the Appellant guilty

of an oblique motive or corrupt practice.  At its Chamber meeting on 26

September  2005,  the  Full  Court  remanded  the  proceedings  to  the

Disciplinary Committee.  The Disciplinary Committee took a fresh decision

and reiterated its earlier view.  When a Full Court considered the view of

the  Disciplinary  Committee  on  5  March  2007  a  fresh  Disciplinary

Committee was assigned to relook into the matter and to issue a show cause

notice to the Appellant. The Disciplinary Committee recorded its tentative

disagreement with the report of the Inquiry Officer and issue a notice to the

show cause to the Appellant.  Upon considering the reply submitted by the

Appellant the Disciplinary Committee in its decision rendered on 1 July

2009 held the charges to be proved and took the view that the Appellant

was liable to be dismissed from service.  The Full Court of the High Court

Page 9

9

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 corrupt practice in the

award of punishments in the cases under the Factories Act 1948.  Yet, the

final conclusion of the Committee was that all the charges including the

charge of corrupt practice stood proved.  The High Court noted that this

was  a  clear  error.   The  Disciplinary  Committee  having  come  to  the

conclusion of  the absence of  an oblique motive or  corrupt practice,  the

High Court held that it was not open to convert the charge into one of gross

Page 10

10

negligence.   For  these  reasons,  the  findings  and  conclusion  of  the

Disciplinary  Committee  in  Inquiry  6  of  2001  were  held  not  to  be

sustainable.   

11 The High Court,  however, held that the charge of misconduct in

Disciplinary Inquiry 15 of 2000 was based on evidence and it could not be

held  that  the  conclusions  of  the  Disciplinary  Committee,  which  were

adopted by the Full Court, were based on no evidence.  The High Court

noted that the Appellant was a judicial officer since 1982, and had worked

for nearly fourteen years as a Judge. While dealing with offences under the

Customs Act 1962, he was expected to refer to the penal provisions under

which punishment was being handed down after recording a conviction.

The High Court noted that the stand of the Appellant appeared to be that he

awarded the sentence without being aware of the statutory provisions.  The

High Court observed that the criminal case with which the Appellant was

dealing was not the first case involving an offence under Section 135. The

High Court noted that despite the minimum punishment prescribed under

Section 135, the Appellant awarded less than the minimum in the case of

several accused.  No reasons appeared from the judgment for the grant of

differential  treatment  to  some  of  the  accused.   More  significantly,  the

punishments awarded to all the accused were structured in such a manner

that none of the accused would have to serve any further sentence, after

accounting for the set-off for the period spent in jail as under- trial prisoner.

Page 11

11

The  High  Court  noted  that  since  the  value  of  the  goods  in  the  case

exceeded rupees one lakh, Section 135 provided for imprisonment for a

term which may extend to seven years and with fine.  Moreover, in the

absence of special and adequate reasons to the contrary to be recorded in

the judgment of the Court, the imprisonment was not to be for less than

three years.  Section 135 (3) also specifies what shall not be considered 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

Page 12

12

them  would  remain  in  jail  any  longer.   The  High  Court  held  that  the

punishment  of  dismissal  was  not  disproportionate  to  the  charge  of

misconduct which has been found to be established.

12 The  first  submission  which  has  been  urged  on  behalf  of  the

Appellant  is  that  there  was  no  warrant  for  the  Full  Court  to  require  a

reconsideration  of  the  decision  initially  taken  by  the  Disciplinary

Committee  on  27  October  2004.   The  submission  is  that  once  the

Disciplinary Committee concluded that the Appellant should be exonerated

by  accepting  the  report  of  the  Inquiry  Officer,  the  Full  Court  in  the

Chamber meeting had no jurisdiction to revisit that decision.   

13 The submission suffers from a fundamental fallacy.  Under Article

235 of the Constitution, the High Court exercises control over the district

judiciary.  The exercise of disciplinary control is a manifestation of that

power.  Exercise of disciplinary control over the district judiciary is vested

in the High Court in pursuance of the provisions of Article 235.  The High

Court,  in  order  to  streamline  the  process  governing  the  exercise  of  its

disciplinary jurisdiction,  may make - as High Courts in fact  do make –

procedural provisions regulating its exercise. The High Court of Gujarat in

a meeting of a Full Court held on 2 March 2004 resolved that matters listed

in annexure ‘A’ to the resolution should be dealt with and decided by the

High Court as a whole.  Action to be taken against judicial officers in the

exercise of disciplinary jurisdiction was one of those matters.  However,

Page 13

13

having due regard to the multitude of administrative matters over which the

Full Court exercises jurisdiction, the High Court assigns and distributes its

administrative functions to constituent committees.  This is imperative for

the  efficient  exercise  of  the  control  of  the  High Court  over  the  district

judiciary under Article 235.  Distribution of work to a Committee of the

High Court does not efface the jurisdiction that vests in the High Court.  By

a resolution that was passed in a Chamber meeting of the High Court held

on 26 December 1998 a detailed procedure was enunciated for the conduct

of disciplinary inquiries against  judicial  officers of  the district  judiciary.

The procedure envisages that after an Inquiry Officer submits a report, the

report together with underlying material on the record would be examined

by a Disciplinary Committee consisting of two judges.  The Disciplinary

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

Page 14

14

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 established.  The submission of

the Appellant is that his judgment at the conclusion of the trial involving

offences  inter  alia  under  Section  135  of  the  Customs  Act  1962  was  a

judicial  decision.  The  basis  of  the  decision  is  contained  in  the  reasons

adduced by the Appellant.  Even if the Appellant had erred in the matter of

awarding the sentence under Section 135, that - it was urged - cannot form

the subject of a disciplinary inquiry.  Moreover, on the basis of the decision

rendered by the Appellant in the two criminal cases, it was sought to be

urged that the Appellant had indicated reasons for arriving at a finding of

the guilt and on the award of the sentence.

15 The issue  of  whether  a  judicial  officer  has  been actuated  by an

oblique motive or  corrupt practice has to be determined upon a careful

appraisal of the material on the record.  Direct evidence of corruption may

not always be forthcoming in every case involving a misconduct of this

nature. A wanton breach of the governing principles of law or procedure

Page 15

15

may well  be  indicative  in  a  given  case  of  a  motivated,  if  not  reckless

disregard of legal principle. In the absence of a cogent explanation to the

contrary, it is for the disciplinary authority to determine whether a pattern

has emerged on the basis of which an inference that the judicial officer was

actuated  by  extraneous  considerations  can  be  drawn.  Cases  involving

misdemeanours of a judicial officer have to be dealt with sensitivity and

care.  A robust common sense must guide the disciplinary authority. At one

end  of  the  spectrum  are  those  cases  where  direct  evidence  of  a

misdemeanour  is  available.   Evidence  in  regard  to  the  existence  of  an

incriminating trail must be carefully scrutinized to determine whether an

act of misconduct is established on the basis of legally acceptable evidence.

Yet in other cases, direct evidence of a decision being actuated by a corrupt

motive  may  not  be  available.  The  issue  which  arises  in  such  cases  is

whether there are circumstances from which an inference that extraneous

considerations have actuated a judicial officer can legitimately be drawn.

Such an inference cannot obviously be drawn merely from a hypothesis

that a decision is erroneous. A wrong decision can yet be a bona fide error

of judgment. Inadvertence is consistent with an honest error of judgment. A

charge of misconduct against a judicial officer must be 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

Page 16

16

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 be ignored. Both

are vital to the preservation of the integrity of the administration of justice.

16 In the present case, it must be emphasised that the charges against

the Appellant involved rendering of decisions actuated by corrupt practice

or by oblique motives.  The two criminal cases which were tried by the

Appellant involved offences under Section 135 of the Customs Act, 1962.

Section 135 is as follows:

         “Section 135-   (1) Without prejudice to any action that may be taken

under this Act, if any person- a) is  in  relation  to  any  goods  in  any  way  knowingly

concerned  in  any  fraudulent  evasion  or  attempt  at

Page 17

17

evasion  of  any  duty  chargeable  thereon  or  of  any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or  

b) acquires possession of or is in any way concerned in carrying,  removing  depositing,  harbouring,  keeping, concealing,  selling  or  purchasing  or  in  any  other manner dealing with any goods which he knows or has reasons  to  believe  are  liable  to  confiscation  under Section 111, he shall be punishable, -

c) in the case of an offence relating to any of the goods to which Section 123 applies and the market price whereof exceeds one lakh of rupees, with imprisonment for term which may extend to seven years and with fine :

Provided 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;

(ii)  in  any  other  case,  with  imprisonment  for  a term which  may  extend  to  three  years,  or  with fine, or with both.

(2) ********** (3) For the purpose of sub-sections (1)  and (2),  the following  shall  not  be  considered  as  special  and adequate  reasons  for  awarding  a  sentence  of imprisonment for a term of less than one year, namely, -

(i) the fact that the accused has been convicted for the first time for an offence under this Act; (ii) the fact that in any proceedings under this Act, other  than  a  prosecution,  the  accused  has  been ordered to pay a penalty or the goods which are the subject-matter of such proceedings have been ordered to be confiscated or any other action has been  taken  against  him for  the  same  act  which constitutes the offence; (iii) the fact that the accused was not the principal offender  and  was  acting  merely  as  a  carrier  of goods or otherwise was a secondary party to the commission to the offence; (iv) the age of the accused.”

Page 18

18

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 have been

unmindful of and was duty bound to have read the governing provisions

of the statute under which the offence was sought to be established.  It is

inconceivable that a judicial officer would do so in two successive trials

without apprising himself of the law or the punishment provided by the

legislature.  The Appellant awarded sentences ranging from three months

to five years  of  imprisonment  to  different  accused.  No reasons  appear

Page 19

19

from the record of  the judgment,  for  awarding less  than the minimum

sentence prescribed.

18 We have duly perused the judgments rendered by the Appellant and

find merit in the finding of the High Court that the Appellant paid no heed

whatsoever to the provisions of Section 135 under which the sentence of

imprisonment shall not be less than three years, in the absence of special

and adequate reasons to the contrary to be recorded in the judgment of the

Court.  Most significant is the fact that the Appellant imposed a sentence

in the case of  each accused in such a manner that  after  the order was

passed no accused would remain in jail any longer.  Two of the accused

were handed down sentences of five months and three months in such a

manner that after taking account of the set-off of the period during which

they had remained as under-trial prisoners, they would be released from

jail.  The  Appellant  had  absolutely  no  convincing  explanation  for  this

course of conduct.  

19 A disciplinary inquiry, it is well settled, is not governed by the strict

rules of evidence which govern a criminal trial.  A charge of misconduct

in a disciplinary proceeding has to be established on a preponderance of

probabilities.   The  High  Court  while  exercising  its  power  of  judicial

review   under Article 226 has to determine as to whether the charge of

misconduct stands established with reference to some legally acceptable

evidence.   The High Court  would not  interfere unless the findings are

Page 20

20

found to be perverse.  Unless it is a case of no evidence, the High Court

would not exercise its  jurisdiction under Article 226.  If there is some

legal  evidence  to  hold  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.  

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

Page 21

21

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.

21 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 final order of penalty

was imposed upon the Appellant.

22 The Civil Appeals are disposed of accordingly.  No costs.

                                              .......................................CJI                  [T S  THAKUR]  

                                                        ..............................................J       [Dr D Y  CHANDRACHUD]

New Delhi JULY 12, 2016