It hardly expected of a judge to use the police machinery to get even with
rivals and that too without any particular incident having taken place but
merely because a complaint had been made against him to the High Court.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4068 OF 2011
Chandrahas Baliram Mhatre Vs. Bombay High Court
CORAM: S. A. BOBDE &
MRS. MRIDULA BHATKAR JJ.
APRIL 18, 2012.
ORAL JUDGMENT (PER S.A. BOBDE,J.)
1. Rule, returnable forthwith. Heard finally by consent of
parties.
2. The petitioner, who has been dismissed from judicial service
under Rule 5, Sub-Rule (1) of Clause (ix) of the Maharashtra Civil Service
(Discipline and Appeal) Rules, 1979 by the Government of Maharashtra by
the order dated 23.2.2011, has challenged his dismissal by way of this writ
petition.
3. A departmental enquiry was duly conducted after receipt of a
complaint by 417 persons from village Kalambusare within the jurisdiction
of Uran. The complaint contained allegations that the petitioner has been
using his official position to support his brother who was involved in
politics. The complaint also contained an allegation that he called meeting
of the villagers of his group to instruct and instigate them to give false
evidence against the rival group of his brother and that due to this
behaviour quarrels frequently took place against the villagers. It was also
alleged that the petitioner prevails on the police to register criminal offence
against the villagers. A show cause notice was issued, calling upon the
petitioner to show cause in respect of the allegations of the complaint. An
enquiry was duly conducted. The charges and the findings of the Enquiry
Officer against the said charges are as follows:-
POINTS FINDINGS
1) Whether the disciplinary authority has No
proved that the delinquent Shri Chandrahas
Baliram Mhatre is in the habit of instigating
his brother Nandkumar and other family
members to quarrel with other villagers of
Kalambusare and called meeting of the villagers
of his group to instruct and instigate them to
lodge false report and give false evidence
against rivals and misused his office as
Judicial Magistrate to instigate the villagers
in indulging destructive and antisocial
activities?
2) Whether the disciplinary authority has Partly yes
proved that the delinquent Shri Chandrahas
Baliram Mhatre visited police station Uran
and instigated the police to lodge the
criminal offences against the villagers?
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3) Whether the disciplinary authority has Yes. The
proved that the delinquent Shri Chandrahas authority has
Baliram Mhatre met Shri A.P. Kulkarni, the proved that
then Judicial Magistrate, Uran in his chamber the delinquent
for 4 to 5 times on working days and got met Shri A.P.
acquitted his brother Nandkumar Baliram Kulkarni, JMFC,
Mhatre and other family members for the Uran in his
offences tried against them? Chamber on
working day on
4 to 5 times.
4) Whether the disciplinary authority has proved Yes
that on 7/10/07 at the time of Gram-panchayat
election of Kalambusare, his brother Nandkumar
and other associates attacked Shri Suresh Raut
apprehending that his party namely `Indrayani
Samajik Sanghatana' would win the election and
therefore there had been commotion and therefore
the complainant Suresh Raut went to police station
Uran in the same night to lodge the report against
Nandkumar, the brother of delinquent and his
associates but he was arrested by police of Uran
Police Station on 8/10/07 at 4.00 a.m. on the
demand of members of opposite party?
5) Whether the disciplinary authority has proved Yes. But
that on 10/10/2007 delinquent Shri C.B. Mhatre disciplinary
went to village Kalambusare and asked his Authority has
neighbours to give statement against failed to prove
complainant to the effect that he (complainant that the delinquent
Suresh Raut) has trespassed the house of his instigated his
brother Nandkumar and thereafter took neighbours to
his mother Taibai to police station Uran and give false
sat in cabin of Sr.Police Inspector and that statements.
Time complainant Suresh Raut went there
and told the police inspector that he wants
to lodge report against the delinquent and
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that time mother of the delinquent lodged
report against Shri Suresh Raut at his
instance and then left the police station, but
mother of the delinquent withdrawn the report
lodged against Shri Suresh Raut?
6) Whether the disciplinary authority has proved Yes
that the delinquent Shri C. B. Mhatre sent the
complaint application against Shri Suresh
Raut and 12 others to Police Commissioner
on 3/10/2008 and thereafter they had called
upon to attend police station Uran in
connection with the enquiry of that
application by Shri Ganesh Gaikwad,
P.I. On 6/11/2008?
7) Whether the disciplinary authority has Yes
proved that Shri Kothawale, Senior Police
Inspector, Uran Police Station received
number of phone calls from Assistant
Police Commissioner, Deputy Commissioner
of Police and other police officials from
Thane and Kalyan requesting to extend
necessary help to the delinquent
Shri Chandrahas Baliram Mhatre and
delinquent had also made telephone calls to
Shri Kothawale in connection with the crime
registered against Nandkumar and Suresh Raut?
8) Whether the disciplinary authority has proved Yes
that Nandkumar Mhatre brother of the
delinquent is creating tense atmosphere in
the village by taking disadvantage of the fact
that delinquent is Judicial Officer and his
brother Nandkumar is behaving arrogantly
with police and constable?
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9) Whether the delinquent's acts amount to Yes
grave misconduct and conduct of unbecoming
of government servant as a Judicial Officer?
10) What order? Delinquent Shri C. B.
Mhatre is held guilty
of grave misconduct
and a conduct
unbecoming of Govt.
Servant i.e. Judicial
Officer provided in
Rule 3 (1)(i) to (iii) of
the Maharashtra Civil
Service (Conduct),
Rule, 1979.
4. The Enquiry Officer submitted his report on 26.3.2010 with
the finding that the petitioner was guilty of grave misconduct. He
answered Point Nos.3, 4 & 6 to 9 in the affirmative, Point No. 1 in the
negative and Point Nos. 2 & 5 partly in the affirmative. Thereafter a show
cause notice was issued to the petitioner by the Disciplinary Authority. The
Disciplinary Authority considered that the findings of the Enquiry Officer
are supported by evidence on record and there are no mitigating
circumstances on record. It was decided to impose the major penalty of
dismissal of the judicial officer from service as prescribed by Rule 5(1)(ix)
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of the Maharashtra Judicial Services (Discipline and Appeal) Rules, 1979.
5. Mr. Patil, the learned counsel for the petitioner submitted that
the findings in the enquiry report are vitiated by perversity and are not
supported by the evidence on record. Even otherwise, it was submitted that
the findings do not warrant the imposition of the extreme penalty of
dismissal which, according to the petitioner, is shockingly disproportionate
to the proved charges.
6. In order to appreciate the contentions raised on behalf of the
petitioner, it may be noted that the petitioner has been found to be guilty of
misconduct on two occasions, firstly, on 10.10.2007 he has been found to
have visited the Uran Police Station with the purpose of lodging a police
complaint against his brother’s rival group for threatening his mother and
his brother. Secondly, he has been found to have written a letter dated
3.10.2008 (Exhibit 14) i.e. almost after a year of the earlier incident, to the
Commissioner of Navi Mumbai alleging several illegal activities of his
brother’s rival group and stating that they had made a false complaint to the
High Court and, therefore, called upon the police to take action against the
7/16aswp-4068-11
guilty in case anything goes wrong with the petitioner or his family.
7. Mr.Patil, the learned counsel for the petitioner submitted that
the first incident of 10.10.2007 cannot be held against the petitioner at all
since the sole motive for visiting the police station was to protect his
mother from the threats she had received from his brother’s rivals. Mr.
Patil submitted that it is not disputed that the petitioner had accompanied
the mother and had gone to the police station but only sat in the office of
the Police Inspector while his mother had her statement recorded in another
room. It was vehemently urged on behalf of the petitioner that the motive
was entirely correct and the petitioner was perfectly justified in coming to
the aid of his mother since she had received threats. There is substance in
the contention of the petitioner. Indeed, if the petitioner felt that the life of
his mother, sister or brother was threatened due to a riot like situation
which had taken place, he cannot be faulted with for having shown his
mother the correct way of seeking protection under the law i.e. by going to
the police station. The petitioner, who was, at that time, serving at another
place, on being informed of the danger at home, went to Uran and took his
mother to the police station. It is, however, interesting to note that the
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petitioner’s visit did not result in any police complaint and the petitioner
and his mother apparently came back without lodging any complaint. This
is presumably due to the fact that the leader of the rival group was also at
the police station and wanted to lodge a complaint, but apparently neither
side lodged any complaint. In any case, it might be unreasonable to
construe this incident as conduct unbecoming of a judicial officer.
As regard the second incident, namely, that of writing a letter
dated 3.10.2008 i.e. almost a year after the first incident, Mr. Patil, the
learned counsel submitted that the letter was written only to ensure that the
police took action against the petitioner if something adverse happens to
him. Though there is a request to that effect in the letter, we find that the
circumstances attending the letter do not justify the writing of such a letter
at all. In the first place, nothing had happened for a year to the petitioner’s
mother or brother. The proximate cause for writing the letter is only that
the brother’s political rival had made a complaint to the High Court
regarding the petitioner’s conduct which formed the basis of the chargesheet and upon which the High Court had issued the show cause notice to
the petitioner. The reason for writing the letter is purely the complaint
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made by the rivals against the petitioner. The letter refers to many so called
illegal activities of the rivals and the entire history of the rivalry and some
incidents in the past. There is little doubt that the petitioner was using his
office to call upon the police to take action against the rival or to protect
himself as a victim after receiving a show cause notice from the court. It
hardly expected of a judge to use the police machinery to get even with
rivals and that too without any particular incident having taken place but
merely because a complaint had been made against him to the High Court.
We find, however, that when this letter is seen in the context of the other
conduct of the petitioner, referred to in the enquiry report, it brings home
the fact that the petitioner used to make attempt to influence the police
machinery in his home town. In fact, there is evidence on record in the
form of the depositions of the Police Inspector, Uran and some other
officials. In the enquiry report, vide para 48, the Enquiry Officer has
reproduced the statement of the Police Inspector Kothawale that several
officers had asked him to extend his help to the petitioner in case he had
any complaint. In fact, he had also received a call from the Commissioner
of Police, who asked him to warn the petitioner’s brother’s rival one Suresh
Raut. Not only this, 2-3 months prior to the alleged incident of rioting
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and the petitioner's visit to the police station along with his mother, the
petitioner had visited the Police Inspector and identified himself as a
Judicial Magistrate, First Class, working at Kalyan without specifying any
object and intention behind his visit. The Police Inspector further told the
Enquiry Officer that he had received a telephonic message from the
petitioner on one or two occasions to extend cooperation to some persons.
In these circumstances, we are not inclined to interfere with the finding of
the Enquiry Officer that the petitioner’s conduct was unbecoming of a
government servant under the Rules.
7. Moreover, we find that there is no warrant for the petitioner to
have written a letter one year after the incident, only upon receiving a show
cause notice from the High Court, to the Commissioner of Police,
highlighting the alleged wrongs of his brother’s political rivals and telling
the police that they are acting against the petitioner’s interest. Though the
stated motive of the letter is to set the machinery in motion in case the
petitioner faces adverse consequences, there is no doubt that the petitioner
was using his official position to influence police machinery. We thus find
that the petitioner did act contrary to the conduct expected from a sitting
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judge and within the meaning of Rule (3) (1)(iii) of the Maharashtra Civil
Services (Conduct) Rules, 1979.
8. Mr. Patil the learned counsel for the petitioner submitted that
the Enquiry Officer has recorded that the petitioner has been found guilty
of misconduct under Clauses (i) to (iii) of Rule 3(1). According to the
learned counsel, the reference to Clauses (i) and (ii) which deal with
integrity and maintenance of devotion of duty is not warranted at all by the
earlier findings. It is correct that the petitioner has been found guilty only
of Clause (iii) and the reference has been made to Clauses (i) to (iii) of the
Maharashtra Civil Services (Conduct) Rules, 1979. Rule 3 reads as
follows:-
3. Duty of Government servant to maintain integrity,
devotion to duty, etc.- (1) Every Government servant shall at
all times-
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government
servant.
(2) Every Government servant holding a supervisory post
shall take all possible steps to ensure the integrity and devotion
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to duty of all Government servants for the time being under his
control and authority.
(3) No Government servant shall, in the performance of his
official duties or in the exercise of powers conferred on him,
act otherwise than in his best judgment except when he is
acting under the direction of his official superior and shall,
where he is acting under such direction, obtain the direction in
writing, wherever practicable, and where it is not practicable to
obtain the direction in writing, he shall obtain written
confirmation of the direction as soon thereafter as possible.
(4) Nothing in sub-rule (3) shall be construed as empowering
a Government servant to evade his responsibilities by seeking
instructions from, or approval of, a superior officer or authority
when such instructions are not necessary under the scheme of
distribution of powers and responsibilities.
However, the finding is that the facts amount to “misconduct
of grave nature and a conduct unbecoming of Government Servant as
provided by Rule 3(1)(i) to (iii) of Maharashtra Civil Services (Conduct)
Rules, 1979 on the part of delinquent Shri C.B. Mhatre”. Clearly the
finding is only in regard to the conduct unbecoming of a government
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servant which is to be found in Rule 3(1)(iii). A mere reference to Rule
3(1)(i) and (ii) will not vitiate such a finding. It was also submitted
by Mr. Patil that some observations of the Enquiry Officer show a total non
application of mind to the facts of the case and in fact, also contrary to his
own finding, such as the Enquiry Officer with reference to incident of
10.10.2007 has observed that the petitioner misused his official position to
lodge a complaint against his brother’s rival, though there is earlier finding
in the same report that the petitioner came back from the police station
without lodging any report. The criticism is justified. We, however, do
not consider it sufficient to set aside the entire enquiry report or the
punishment.
9. Mr. Patil, the learned counsel for the petitioner submitted that
the so called complaint on the basis of which the petitioner was charged
and supposedly signed by 417 persons is wholly fabricated. According to
the learned counsel the names and signatures of the persons were obtained
by the rivals of the petitioner’s brother while distributing umbrellas in the
course of a political campaign. The learned counsel referred to the
depositions of one witness who stated that he had put his signature in token
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of the receipt of the umbrella received by him. We have considered the said
statement and also the other statements on the point, but we find that the
evidence does not discredit the complaint at all. The petitioner himself
examined the witnesses on the point and the witnesses stated before the
Enquiry Officer that they identified their own signatures before the
Enquiry Officer and some of them had signed on behalf of their spouse.
This evidence does not indicate any falsity in the complaint as alleged, but,
on the other hand seems to establish the fact that these persons had signed
the complaint on their own behalf as well as on behalf of their spouse. It
was lastly urged on behalf of the petitioner that the petitioner’s conduct
could not have been characterized as unbecoming of a government servant
and in any case could not warrant the imposition of penalty of dismissal.
According to the learned counsel the misconduct, if any, was of a minor
nature. We are unable to agree with this submission. The petitioner was
serving as a judge and who had to decide civil and criminal matters. In the
course of his duties, he had to deal with the evidence of police and
critically assess the investigation done in criminal cases. He, thus, clearly
occupied a position of influence over the police machinery. In these
circumstances, we do not see how it was any part of his official duty or
judicial duty to call a Police Inspector and other police officers stationed at
his home town to seek support for himself or his people and getting his
brother’s rival warned. This conduct, in our view, runs counter to the
character of a judicial officer.
10. In the result, we find no merit in this petition, which is hereby
dismissed. Rule is discharged. No order as to costs.
(MRS. MRIDULA BHATKAR,J.) (S. A. BOBDE,J.)
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