(Guest)

Judge awarding punishment less than minimum without reason w

Judge awarding punishment less than minimum without reason whether liable for departmental enquiry?

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
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.
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
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
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.
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

Dr D Y CHANDRACHUD, J
DATED:JULY 12, 2016