REF- v. SMT. SAYALEE SANJEEV JOSHI, MEMBER, MAHARASHTRA PUBLIC SERVICE COMMISSION

Citation: [2007] 7 S.C.R. 116

Court: Supreme Court of India

Bench: B.P. SINGH, TARUN CHATTERJEE, P.K. BALASUBRAMANYAN

Case summary

REF- v. SMT. SAYALEE SANJEEV JOSHI, MEMBER, MAHARASHTRA PUBLIC SERVICE COMMISSION.pdf

Judgment text

REF: SMT. SAYALEE SANJEEV JOSHI, MEMBER, MAHARASHTRA .. PUBLIC SERVICE COMMISSION ~ MAY 17, 2007 [B. P. SINGH, TARUN CHATTERJEE AND P. K. BALASUBRAMANYAN, JJ. ] Constitution of India, 1950: Article 317-Reference-Member of Public Service Commission- Malpractices in respect of certain Examination-Arrest of the Meinber- Subsequently released on bail-Suspended by President of India-On a Reference to Supreme Court, HELD: Non-disclosure ofher daughter being a candidate in the Examination amounts to misconduct and thus the charge answered in the affirmative-On another charge certain observations made- ,;,;a. Thus she did not behave in a manner befitting a member ofa constitutional body like· the Public Service Commission. The reference under Article 317 ofthe Constitution oflndia relates to the conduct of the respondent, a member of the Maharashtra Public Service . Commission and as to whether she is liable to be removed from office on the ;-ground ofmisbehaviour.

,- Respondent joined the Maharashtra Public Service Commission as a member on 8. 5. 2001. She was arrested on 8. 6. 2003 in a crime registered in connection with a complaint lodged by the Public Service Commission relating to mal-practices in respect ofan examination conducted in the year 1999. Twenty one others were also arrested. The respondent was lodged in jail The Governor of Maharashtra requested the President ofIndia to initiate action i. under Article 317 of the Constitution of India for her removal. He also suspended her from office until an order had been passed by the President under clause (1) of Article 317 of the Constitution. The respondent was subsequently released on bail. Thus, the reference came to be made to this Court under Article 317(1) of the Constitution of India. The following were the charges framed by this Court based on the I " .. SAYALEE SANJEEVJOSHI, MEMBER.

MAHARASHTRAPUBLICSERVICECOMMISSION 117 I suggestions ofthe Attorney General for India on examination of the relevant materials. Charge-I Whereas Ms. Sayalee Joshi has, directly or indirectly, tried to protect the interests of 24 candidates who appeared in an examination conducted by the MPSC and has also attempted to influence an officer of the Commission to do such illegal actions in the future in conjunction with one Mr. Nitin Sathe. Charge-2 Whereas the respondent no. 3, Ms. Sayalee Joshi committed an act of misbehaviour by interfering with an internal inquiry being conducted by the Secretary ofMPSC regarding alleged malpractices in the examination for PSI/Asstt/STI conducted by the MPSC. Charge-3 Whereas Ms. Joshi deliberately and in a ma/afide manner omitted to disclose a very vital fact to the Commission, namely that her daughter was appearing for an examination being conducted by MPSC, which disclosure was mandatory as per Office Order No. 4/1998 dated 5. 5.

1998 of the MPSC and hence sought to suppress vital and material information from the Commission, which affects her integrity and complete devotion to duty in an impartial manner, amounting to misbehaviour under Article 317(1) of the Constitution. Charge-4 Whereas Ms. Joshi, in collusion with Mr. Nitin Sathe, attempted to sabotage lodgingofa complaint by a candidate as regards malpractices in the examination conducted by the MPSC for the posts ofPSl/Asstt/ STI and hence abused her official position and acted contrary to the interest of the Commission and the candidates, and is guilty of misbehaviour under Article 317(1) of the Constitution. Answering the Reference, the Court HELD: 1. 1. There is evidence to show that on 25. 4. 2002, P. W. 15 Sarode visied the respondent at her flat. The visit is recorded in the visitors' book kept at Nilambari, the building in which the Oat is situate. The respondent has also admitted this visit.

It is the charge that, at this meeting, Nitin Sathe, a person who was involved in the 1996 examination scam and who was also arrested in connection with the 1999 examination scam was also present The presence of Nitin Sathe is sought to be proved by the evidence of P. W. 15 Sarode, supported by his previous statement, Exhibit 53, the confession made before P. W. 14 and also by way ofinference from the number oftelephone calls the respondent had made to Nitin Sathe from her residential telephone, office telephone and her mobile phone. The respondent has admitted that she had contacted Nithin Sathe on a few occasions, but she has pretended ignorance of the fact that Nitin Sathe was an accused in the 1996 examination scam of M. P. S. C. and that the said facfwas carried by various newspapers. Though the respondent admitted that she read a newspaper regularly, she took the stand that she did not remember having read. about Nithin Sathe and his involvement in the 1996 scam.

The number ofphone calls made by her to Nitin Sathe during the relevant time is sought to be justified by the respondent by stating that Nitin Sathe was a land broker; that she and her mother jointly purchased a plot in Pune, which she wanted to sell after the death of her mother and that she had contacted Nitin Sathe for the purpose of helping her to sell that plot ofland. According to her, nobody introduced Nitin Sathe to her, but someone at the Talathi, to which she was regularly going after the death of her mother for getting the land records changes, had told her about Nitin Sathe and given her his phone number. She could not remember the person who suggested Nitin Sathe to her. The respondent is an educated person. She had held a responsible position in the Indian Institute of Education from where she had come to the Public Service Commission as a Member.

It is difficult to believe her story that she had no· occasion to very the antecedents of Nitin Sathe before getting in touch with him for the purpose of the sale of her plot of land; and that she had simply contacted him on the basis ofsome j_ unknown at the Talathi telling her about him and giving her his telephone number. [Para 46) [169-H; 170-A-B, C, D, E, F) 1. 2. It is not possible to believe her story that she was not aware of the antecedents ofNitin Sathe and that she was trying to get her plot ofland sold through him without even having met him once and even without having gone to his office at any time or even without giving him at least the copies of the documents oftitle or sketch ofthe property to be sold.

After all, in the normal course, a person takes care to ensure that the person she seeks the help for selling an item Of property is a reliable person and has a good record as a broker before ertrusting such a person with the task of finding out a purchaser for his or her own property. It is difficult to imagine that the SAYALEESANJEEVJOSHI, MEMBER, MAHARASHTRA PUBLIC SERVICE COMMISSION 119 - respondent did not act as a prudent person in this matter. She relied upon the ,A evidence of P. W. 5 to show that Nitin Sathe was an estate broker. P. W. 5 has stated in cross-examination that Nitin Sathe was an estate agent From that alone one cannot infer that his activities were confined only to land broking. The evidence indicates that he was involved in other activities, particularly relating to the qualifying examination conducted by M. P. S. C.

On the basis of ' the evidence read as a whole and in the circumstances, there is no hesitation is discountenancing the version of the respondent that she was not aware of the antecedents of Nitin Sathe and that she had never met him even though she had entrusted him with the task of finding out a purchaser for her property in Pune. The fact that she was also contacting dubious characters who were subject to prosecution like Moolani (a large number of times) and Jadhav who was running a coaching institute for M. P. S. C. Examinations also suggests that her innocent version about contacting Nitin Sathe cannot be accepted. It is also difficult to imagine that as a woman of the world, who had held a responsible position, she was not aware of the antecedents of Nitin Sathe and his involvement in the 1996 examination scam especially after she had become , a member of the Commission in the year 2001. (Para 46) (170-F, G; 171-A-D] 1. 3. There is also the evidence of P. W.

9 Aparna Dubey that she was approached by Nitin Sathe who claimed that he was close to the respondent, that he had threatened and coerced her to retract a complaint she had made regarding the conduct of the 1999 examination and the threat had been held out to her and her friend by Nitin Sathe presumably at the instance of the respondent The attempt in the cross-examination was to show that Aparna Dubey was an unreliable person by suggesting that she had produced an inaccurate creamy layer certificate which was also outdated and, that she had also produced an experience certificate which was obtained from her father ) and it was a false one. Some attempt was also made to show the confusion about the address at which she was residing.

All the same, the fact remains that Aparna Dubey originally made a complaint and then gave a second statement to the Commission, in essence withdrawing her earlier complaint which was one of the items that triggered as internal enquiry conducted by the Secretary to the Commission, Seema Dhamdhere and a copy ofthe second representation with the seal of the Commission was found in the residential premises of the respondent and it was recovered from her residence on a search. [Para 47) [171-D, E, F, G] 1. 4. There is also the evidence of P. W. 10 Jyoti Desai that Nitin Sathe had asked for money to get her selected in the examination and Nitin Sathe made by Sarode P. W. 15 and spoke about the confessional statement regarding the involvement of respondent No. 3 being corroborated by the entry made in the visitors' book maintained at the residence of respondent No. 3 at Nilambari· building.

He also gave evidence that the telephone printout received from service providers had revealed that respondent No. 3 had contacted Nitin Sathe 8 times between 28. 3. 2002 to 25. 9. 2002 from her office phone and 20 times through her residential phone between 30. 3. 2002 to 20. 5. 2002. From her mobile, she had contacted Nitin Sathe four times between 18. 5. 2002 to 27. 5. 2002. He also spoke about the recording of the statement ofJyoti Desai and Apama Dubey. He had also recorded the statement ofothers like that of Solunke P. W. 8 ::r. J Ohwal P. W. 12. In his cross-examination, it was brought out that the respondent was originally shown as a witness and only later on shown as an accused. It was suggested to him that he had not made a proper enquiry with the driver and the maidservant ofthe respondent. It was brought out that he had recorded the statements of more than 2000 candidates in respect of this crime.

It was brought out that there were charges against him on various counts, but he asserted that no substance was found in any ofthem. Though originally, there were 22 charges proposed to this Court, only four 'i charges had been framed ultimately. It was attempted to be suggested that his evidence in this Court was motivated. He denied the suggestion that the confession Exhibit 53 made by Sarode was inspired by him. He also denied that the confessional statement was made by P. W. 15 Sarode at his instance. 'I The Panch witnesses proved the recovery and some of the papers from the residence of the respondent and from her cabin in the Commission office. (Para SO) (172-H; 173-A-H; 174-A] 1. 7. It is clear that he respondent was being in constant touch with Nitin Sethe over the telephone. That P. W. 15 visited the respondent on 24. 5. 2002 is admitted.

This is also corroborated by the visitors' register kept at NilambarL Obviously, what transpired in her flat is something that is known only to her ~and P. W. 15 Sarode and ifNitin Sathe was present there, also to Nitin Sathe. The evidence of Nitin Sathe is not before this Court but it is clear that he has been arrested in connection with the scam and he was also involved in the previous scam of the year 1996. (Para 51) (174-C, D, E) 1. 8. The respondent joined the Commission only on 8. S. 2001 and even before that, the conspiracy relating to permitting all students to take the final examination had been enacted. The alleged role ofthe respondent started only from the decision to rescan the answer-sheets on the pretext that the computer had become corrupted and the subsequent attempt of replacing the answersheets. It is after narrating all these facts that P. W.

15 has stated in his prior statement that the respondent had called him to her residential flat and had introduced Nitin Sathe to him and had told him that the list sponsored by Nitin Sathe containing 24 names were her own candidates and further that in future he should work in conjunction with Nitin Sathe for the mutual benefit ofall concerned. Though it may be part of a different phase, the fact remains that P. W. 15 has also stated that he has been called to the office of the respondent subsequently and had been told not to reveal the name ofNitin Sathe at the internal enquiry that was c;>rdered by the Acting Chairman ofthe Commission and that was being carried on by the Secretary Seema Dhamdhere. It is not possible to accept the argument advanced on behalfof respondent No. 3 that the prior statement should be thrown out lock, stock and barrel for the purpose ofthis enquiry. What this Court is concerned with is the appreciation ofthe evidence of P. W.

15 examined before this Court in the light of his crossexamination, the other evidence and in the light of his prior statement contained in Exhibit 53. So viewed, it is really a question of believing or disbelieving the evidence of P. W. 15. This Court is not dealing with a prosecution and in that context the alleged confession ofa co-accused, but on y a fact finding enquiry based on the evidence before this Court and the probabilities of the case. (Para 52) [174-F-H; 175-A-D] SAYALEE SANJEEVJOSHI, MEMBER, MAHARASHTRAPUBLIC SERVICE COMMISSION 123 1. 9. P. W. 15 is himself an accused in the case registered in connection with the scam and he is also a self confessed participant in the goings on in the Commission. In that situation, it will be appropriate to look for some corroboration of his version before entering a fh1. ding that the respondent has, in fact, said that 24 persons mentioned by Nitin Sathe were her own 1 candidates and that P. W.

15 should help them to qualify in the examination. This part of the case is not supported by the papers allegedly recovered either from her flat or from her office. There is also no clear evidence of a list of 2~ persons. There is no adequate material to show that Nitin Sathe was in fact pre. sent when PW 15 met the respondent at her flat on 24. 5. 2002. In this situation the benefit of doubt must go to the respondent, especially, when the enquiry is to find out whether she is guilty of misbehaviour within the meaning of Article 317 of the Constitution. So in the absence ofany other evidence t~ corroborate the evidence of P. W. 15 and his prior statement Ext. 53 this Court is not inclined to find that charge No. 1 is proved against the respondent. [Para 53] (175-D, E, F]' 2. 1.

The second charge is essentially on the footing that the respondent did not disclose the information to the Secretary of the Commission, Seema' Dhamdhare who was conducting the internal enquiry about he request of Sorde not to make a criminal complaint and in that event, he was prepared to I resign from his post-and that the respondent influenced Aparna Dubey and her friend to withdraw their complaint made to the Commission and to file a fresh complaint implicating Seema Dhamdhare in the racket The respondent1 did not disclose to the Commission that Sorde had made such an offer to her. She spoke about this in her evidence. She also does not deny that she did not 1 inform the Chairman or the Commission as a body about the offer ofSarode. But her case is that she informed Varma, another member, who was an ex- Director General of Police. The Chairman ofthe Commission had requested 1 Varma to oversee the enquiry conducted by Seema Dhamdhare.

According to her, she thought that that was sufficient. There is nothing further to show that Varma was conveyed this information by the respondent. Therefore, to• that extent, the respondent had not cooperated with the enquiry. Apama Dubey has given evidence that Nitin Sathe had threatened her and compelled her to 1,G withdraw the first complaint made and to make a second complaint involving Seema Dhamdhare who was making the internal enquiry. Aparna Dubel further stated that according to Nitin Sathe, it was at the instane ofrespondent No. 3 that he had approached her to retract her original complaint. Nitin Sathe had followed up this request with threats over the telephone. It is true that 1 other than the statement of Apama Dubey there is nothing to show that Nitin Sathe claimed that he was acting at the behest of the respondent or that he was acting on her behalf.

Of course, her repeated contacting him over the telephone, does create a suspicion, a suspicion, that Nitin Sathe might have been acting on her behalf also. But, based on suspicion alone it would not be appropriate to enter a finding on that aspect (Para 54J (175-G; 176-A-EJ 2. 2. But the fact remains that at least a copy of the second complaint/ statement said to have been made by Aparna Dubey which she claimed to have handed over to the respondent in person, was found in the possession of the respondent. The evidence indicates that it was not a document that was communicated to her by the Commission officially, and consequently, her custody or possession of that paper should be considered unauthorized.

But all said and done, the only fact that can be found as causing impediment in the internal enquiry could be said to be her failure to disclose the statement of PW 15 Sarode to the enquiry officer and the suggestion of a complaint being got made against the investigating officer herself so as to impede the internal enquiry. On these materials alone one would not like to enter a finding that the respondent had committed an act of misbehaviour by interfering with the internal enquiry. [Para 54] (176-E, F, G] 3. 1. It is admitted that the daughter of the respondent had applied from two places for appearing in the examination conducted by the Commission in the year 2002. It is the case of the respondent that her daughter had not, as a matter offact, appeared in the examination.

But the question is whether the respondent had no obligation to inform the Commission that her daughter was a participant in the examination conducted by the Commission in her capacity as a Member of the Commission. The respondent did not deny that she had not informed the Commission about the candidature ofPoorva, her daughter. She also does not deny that there was a circular to the effect that all employees and officers of the Commission should disclose if any of their near relations were candidate in any examination conducted by the Commission. Her stand is that since she was neither an employee nor an officer, but was a niember of the Commission, the circular did not apply to her and she had no legal obligation to inform the Commission of her daughter appearing in an examination conducted by the Commission. (Para 55] [177-A, B, CJ 3. 2. The respondent was holding the position of a member of a constitutional body having a higher status.

It is not possible to appreciate the stand of the respondent that even while the employees and officers of the SAYALEE SANJEEVJOSHI, MEMBER, MAHAflASIITRAPUBLIC SERVICE COMMISSION 125 Commission had an obligation to inform the Commission about the appearance of their near relations in any examination conducted by the Commission, no such obligation was attached to a member of the Commission. May be, a member ofthe Commission would not qualify as an employee or as an officer of the Commission, but that cannot absolve a member from the obligation of disclosing to the . Commission that her daughter was to appear in the examination conducted by the Commission. Obviously, the object was to ensure that she did not participate in that particular selection process lest charges are raised of partiality in the process ofselection. Normally, in such a situation the member or members are to be kept out of the particular process.

Since, admittedly the daughter of the respondent had applied for appearing in the ' examination 2002 from two places and the respondent had failed to inform the Commission about the participation of her daughter in such an examination, it has to be held that she has misconducted herself by not making a disclosure to the Commission in that regard. The fact that the daughter later on did not actually appear in the examination would make no difference. (Para 56) (177-D, E, F, G) 3. 3. This charge has to be found against the respondent and it has also to be held that her conduct is not informing the Commission about the making of applications by her daughter for appearing in the examination 2002 conducted by the Public Service Commission amounts to misconduct. (Para 57) (178-C, DJ 4. 1 Even while considering charge No. 2, the evidence ofAparna Dubey to th.

e effect that she was made to withdraw her complaint by Nitin Satbe by holding out threats to her and that she bad to file a second complaint by handing over the same to the respondent implicating Serna Dbamdhare, the Secretary to the Commission bas been referred to. An attempt was made to p show that Aparna Dubey was not an honest person and that she and her friend were acting in concert to defame the respondent. Aparna Dubey had produced an incorrect experience certificate and she had not produced an accurate creamy layer certificate and she was unreliable. Ofcourse, there is not enough evidence to show that Nitin Sathe had acted at the behest of the respondent while he is alleged to have threatened Aparna Dubey and her friend to withdraw G ' their first complaint and compelling her to make a second complaint.

But the fact remains that one ofthe copies ofthe complaint was found in the residence of the respondent when it was searched and according to the evidence the respondent was not authorized to keep such a copy of the alleged complaint since it had not been communicated to her officially. The explanation of the respondent is that she had found a copy of the complaint lying on her desk in her office and she had immediately affixed a seal on it and forwarded it. But that part of the story is belied by the·fact that at least one copy was found in her premises when the searc~ was made. (Para 58) [178-E-H; 179-A) 4. 2. It is true that the respondent was in constant touch with Nitin Sathe. This Court has already discountenanced the story that she was contacting Nitin Sathe only in connection with the sale of her plot in Pune. But even then, it cannot be said that there is adequate evidence to show any collusion with Nitin Sathe as reflected by this charge.

Therefore, though some suspicions are raised regarding the conduct of the respondent in this court in the light of her own evidence, it is not possible to say that the charge, as such, has been made out so as to hold that this charge is proved against the respondent. [Para 59) [179-A, B, C) 5. Based on the finding on charge No. 3 and the observations on charge No. 2, this Court is of the view that the respondent has not behaved in a manner befitting a member of a constitutional body like the Public Service Commission and under the circumstances, the reference made by Hon'ble the Presidentoflndia to this Court is answered in the affirmative only as regards charge No. 3. (Para 60) (179-C, DJ Speciai Reference No. 1of1983, (1983) 3 SCR 639; Special Reference No. 1 of 1985 (1994) 2 SCR 37; Reference Case No. 1 of 1995, (1997) 3 SCC 216 and Special Reference No. 1of1997, (2000) 4 SCC 309, relied on. ADVISORY JURISDICTION : Reference No. 1of2004.

(Under Article 317 (1) of the Constitution of India) A. Shariill, ASG, Amit Anand Tiwari Gaurav Aggarwal, P. Panneswaran (for Attorney General for India) Ajit Kr. Sinha, D. Patil, Dinesh Tiwari G. R. Pandey, Rakhi Suman, Ravindra K. Adsure, Makarand D. Adkar, Vijay Kumar, S. D. Singh and Vishwajit Singh for the appearing parties. The Report of the Court was delivered by P. K. BALASUBRAMANYAN, J. I. This reference is made by the Hon'ble President of India under Article 317 of the Constitution of India in relation to the conduct of the respondent, a member ofthe Maharashtra Public Service } Commission. The question is whether respondent No. 3 is liable to be removed SAYALEE SANIEEVJOSHI, MEMBER. MAllARASHlllAPUBLIC SERVICECOMMISSION fBALASUBRAMANYAN,I. I 127 from office on the ground of misbehaviour. 2. The said respondent joined the Maharashtra Public Service · Commission as a member on 8. 5. 2001. She was a. -rested on 8. 6.

2003 in a crime , registered in connection with a complaint lodged by the Public Service Commission relating to mat-practices in respect of an examination conducted, in the year 1999. Twenty one others were also arrested. The respondent was lodged in jail. This led to His Excellency the Governor of Maharashtra to · request His Excellency the President of India to initiate action under Article 317 of the Constitution of India for her removal. He also suspended her from office until an order had been passed by the President under clause (1) of Article 317 of the Constitution. It is seen that the respondent was subsequently released on bail though at least on three earlier occasions, her prayers for bail , were rejected. Since a request was made to the President of India to act in terms of Article 317(1) of the Constitution, the placing of the respondent ' under suspension under Article 317(2) of the Constitution was proper.

Considering the nature of the scam that emerged and the constitutional position enjoyed by the Public Service Commission, the reference to this Court under Article 317(1) of the Constitution is seen to be the proper step to be taken. 3. The Governor made the request to the President by letter dated 5. 8. 2003 to initiate action under Article 317 ofthe Constitution. His Excellency made the reference by Jetter dated 13. 12. 2003. 4. Article 317 of the Constitution reads as under: "317.

Removal and suspension of a member of a Public Service i Commission-(1) Subject to the provisions of clause (3), the Chairman or any other member of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on enquiry held in accordance with the procedure prescribed in that behalf under article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed. (2) The President, in the case of the Union Commission or a Joint Commission, and the Governor in the case ofa State Commission, may ' suspend from office the Chairman or any other member of the Commission in respect of whom a reference has been made to the ) Supreme Court under clause (I) until the President has passed orders t on receipt of the report of the Supreme Court on such reference. l I , (3) Notwithstanding anything in clause(!

), the President may by order Ir remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other members, as the case may be,- (a) as adjudged an insolvent; or ,. (b) engages during his term ofoffice in any paid employment outside the duties of his office; or (c) is, in the opinion of the President. (4) Ifthe Chairman or any other member ofa Public ServiCe Commission is or becomes in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or the Government ofa State or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of clause (1), be deemed to be to be guilty of misbehaviour. " 5.

The contours of enquiry when a reference is made by the President of India under Article 317 (1) of the Constitution of India has been clearly drawn by this Court in Special Reference No. I of1983 (1983] 3 S. C. R. 639. This Court therein has held that the President's prima facie satisfaction based on available materials was enough for making a reference to this Court under Article 317(1) ofthe Constitution of India and that there was no need for the President to obtain the opinion of any fact finding body before making a reference. The enquiry which this Court is required to hold is not into the limited question whether, on the basis of facts found by the President, the ; charge ofmisbehaviour is made out and whether the misbehaviour is of such a nature as to warrant the removal of the person from his office.

The inquiry contemplated by the Article is into the facts themselves so as to enable the Court to pronounce upon the question whether the allegations made against the member are proved. This Court also indicated the procedure that could be conveniently followed when this Court is called upon to answer a reference under Artide 317(1) of the Constitution of India. ·' SAYALEE SANJEEVJOSHI, MEMBER, MAHARASll11!. APUBLICSERVICECOMMISSION (BALASUBRAMANYAN, J. ( 129 6. In Special Reference No. 1of1985 [1994] 2 S. C. R. 37, a Constitution Bench adopted the procedure indicated in Special Reference No. I of 1983. In Reference No. I of 1985 the guidelines to be followed by the Court in recording evidence at the enquiry so as to enable this Court to answer the reference are also set down. 7. The present reference was made by the President ofIndia on 30. 12. 2003.

B' This court issued notices to the Attorney General for India, the Advocate General for the State of Maharashtra, the Maharashtra Public Service Commission and the concerned member. After the preliminary steps were completed, on 13. 12. 2004, this Court requested the Attorney General for India to scrutinize the materials and file a statement setting out the ground or , grounds of misbehaviour along with the statement of facts forming the basis I 1 thereof which is to be inquired into within the meaning of Article 317(1) of the Constitution ofIndia. On 2. 3. 2005, the learned Attorney General for India filed a statement containing charges accompanied by the statement of facts, list of witnesses and list of documents. On 1. 4.

2005, this Court directed the Maharashtra State Government and the Maharashtra Public Service __p Commission, to assist the learned Attorney General for India by making available all the relevant documents accompanied by translations so that the learned Attorney General for India can form an opinion on the question of reframing or supplementing the charges. The Attorney General for India was also to take into consideration the explanation furnished by the concerned member of the Public Service Commission. Originally, twenty two charges were proposed. Initially they were reduced to six charges. 8. The learned Attorney General for India finally suggested that out of the six charges proposed, charge Nos. 3 and 6 may be dropped since they were not strictly within the purview of the reference made by the President since they related to conduct subsequent to the misbehaviour complained of. The learned Attorney General for India suggested that charge Nos.

1, 2, 4 and 5 may be framed against the member. This Court heard the objecfams of the concerned member and the Public Service Commission to the suggestion made by the Attorney General for India and passed an order on 5. 10. 2005 directing that charge Nos. 1, 2, 4 and 5contained in the note of the learned Attorney General for India be framed against the concerned member. On 25. 10. 2005, this Court adopted the procedure and the guidelines followed in the two instances referred to above and directed the evidence to be taken by a City Civil Court Judge of Bombay to be nominated by the Principal Judge, Civil Court, Bombay. The chief examination ofthe witnesses was to be by way of affidavits filed in this Court and the cross examination was to be done in ... the presence of the nominated City Civil Court Judge to be recorded by him.

This Court directed that after recording the evidence,_ the concerned Judge shall forthwith transmit the records to the Registrar General of this Court for the matter being placed before the Bench. Pursuant to this, evidence was taken and the records transmitted to this Court by the City Civil Court Judge. During arguments, it was discovered that due to some confusion, the concerned member against whom the charges are framed had not been examined. The member also wanted her statement recorded. This Court therefore passed an order on 17. l. 2007 directing that the five affidavits filed by the. concerned "' member before this Court be treated as her evidence in chief-examination and she may be cross examined in the presence of a Registrar of this Court who I was subsequently named by order dated 22. 1. 2007. Pursuant thereto, the ~ concerned Registrar of this Court recorded the evidence of the respondent r and the matter again came up before this Court for consideration.

The matter was heard in detail with reference to the relevant materials on record. 9. The following are the charges framed by this Court based on the suggestions of the learned Attorney General for India on examination of the '\ relevant materials. "Charge -1 Whereas Ms. Sayalee Joshi has, directly or indirectly, tried to protect the interests of24 candidates who appeared in an examination I conducted by the MPSC and has also attempted to influence an i officer of the Commission to do such illegal actions in the future in t ~ conjunction with one Mr. Nitin Sathe. Charge - 2 Whereas the respondent No. 3, Ms. Sayalee Joshi committed an act of misbehaviour by interfering with an internal inquiry being conducted by the Secretary of MPSC regarding alleged malpractices in the examination for PSI/Asstt/STI conducted by the MPSC. Charge - 3 (renumbered; original Charge N0. 4 as suggested by the Attorney General) Whereas Ms. Joshi deli~erately and in a mala fide manner omitted t ..

to disclose a very vital fact to the Commission, namely that her daughter was appearing for an examination being conducted by MPSC, SAYALEESANJEEVJOSHI, MEMBER. MAHARASHTRA PUBLICSERVICECOMMISSION IBALASUBRAMANYAN, I. I 131 . which disclosure was mandatory as per Office Order No. 4/1998 dated --; 05. 05. 1998 of the MPSC and hence sought to suppress vital and material information from the Commission, which affects her integrity and complete devotion to duty in an impartial manner, amounting to misbehaviour under Article 317(I) of the Constitution. Charge - 4 (renumbered; original Charge NO. - 5 as suggested by the Attorney General) Whereas Ms. Joshi, in collusion with Mr. Nitin Sathe, attempted J.. ___ to sabotage lodging of a complaint by a candidate as regards malpractices in the examination conducted by the MPSC for the posts of PSI/Asstt/STI and hence abused her official position and acted contrary to the interests of the Commission and the candidatf?

s, and is guilty of misbehaviour under Article 317(I) of the Constitution. " IO. During the enquiry exhibits l to 71 were marked and 17 witnesses were examined. The respondent also got herself examined. Elaborate submissions were thereafter made on the charges framed. 11. Before we proceed to deal with the separate charges which we have renumbered as I to 4 for convenience certain facts may be noted. The various complaints that arose were in connection with a competitive examination announced by the Public Service Commission on 14. 7. 1999 for recruitment of Police Sub-inspectors/Sales Tax Inspectors and assistants. The Preliminary Examinations were held on 18. 6. 2000 and the results of the Preliminary Examinations were declared on 2. 11. 2000. There were complaints regarding the i Preliminary Examination and a decision is said to have been taken by the Public Service Commission on 29. 11.

2000 to permit all the candidates whether they had qualified in the Preliminary Examination or not, to appear for the main examination. A Notification in that behalf was issued on 6. 12. 2000. On 8. 3. 2001 the main written examination was held at different centres in the State. The scanning of the mark-sheets took place between 23. 3. 2001 to 16. 5. 2001. 12. At all these times the respondent was not a member of the Public Service Commission. She joined only on 8. 5. 2001. 13. Learned counsel for respondents No. 3 argued as if this reference . ) was a criminal trial and the charge against the respondent has to be proved beyond reasonable doubt. Learned counsel for the Public Service Commission submitted that these proceedings were neither in the nature ofa criminal trial nor in the nature of the service dispute, but that it was a question of an inquiry into the conduct of a member of the Public Service Commission who was expected to maintain highest standards of integrity.

This Court in Re Reference under Article 317(1) ofthe Constitution ofIndia [1990] 4 S. C. C. 262 while answering Special Reference No. 1 of 1983 had noticed: "The case ofa government servant is, subject to the special provisions, governed by the law of master and servant, but the position in the case of a Member of the Commission is different. The latter holds a c•mstitutional post and is governed by the special provisions dealing ·~_....... ,... with different aspects ofhis office as envisaged by Articles 315 to 323 _... ---ofChapter II ofPart XIV ofthe Constitution. In our view the decisions dealing with service cases relied upon on behalf of the respondent have no application to the present matter and the reference will have to be answered on the merits ofthe case with reference to the complaint and the respondent's defence. " 14. While answering Reference Case No. 1of1995 [1997] 3 S. C. C.

216], this Court held that the attempt to influence the result ofa candidate appearing in an examination conducted by the Public Service Commission would amount to misbehaviour on the part of a member of the ·Commission. In Special Reference No. I of1997 [2000] 4 S. C. C. 309, this Court explained the position held by the members of the Public Service Commission thus: "Keeping in line with the high expectations of their office and need to observe absolute integrity and impartiality in the exercise of their powers and.. Qyties, the Chairman and members of the Public Service 'r Commission are required to be selected on the basis of their merit, ability and suitability and they in tum are expected to be models themselves in their functioning. The character and conduct of the Chairman and members of the Commission, like Caesar's wife, must therefore be above board.

They occupy a unique place and position and utmost objectivity in the performance of their duties and integrity and detachment are essential requirements expected from the Chairman and members of the Public Service Commissions. " This Court towards the end further stated: The credibility of the institution of Public Service Commission is founded upon faith ofthe common man on its proper functioning. The faith would be eroded and confidence destroyed if it appears that the SAYALEESANJEEVlOSHJ, MEMBER, MAHAllASH11lAPUBLIC SERVICECOMMISSION (BALASUBRAMANYAN, J. ) 133 Chainn~ or the Members ofthe Commission act subjectively and not objectively or that their actions are suspect. Society expects honesty, integrity and complete objectivity from the Chairman and Members of the Commission. The Commission must act fairly, without any pressure or influence from any quarter, unbiased and impartially, so that the society does not loose confidence in the Commission.

The high constitutional trustees, like the Chairman and Members of the Public Service Commission must for ever remain vigilant and conscious of these necessary adjuncts. The task of this Court therefore is to find out as a fact whether the materials disclose a conduct on the part of the respondent (a constitutional functionary) which would be misbehaviour within the meaning of Article 317(1) of the Constitution of India. OuF. approach to the reference in answering the charges framed has to be on this basis. 15. There is no doubt that the first respondent- Public Service Commission has clearly fallen from grace and the exalted status it enjoys under the Constitution. That one scam after another should erupt in respect of such a constitutional body is a very disturbing aspect.

If constitutional institutions fail in their duties or stray from the straight and narrow path, it would be a great blow to democracy a system of governance that we have given unto ourselves and the great vision our constitutional framers had about the future of this country. During the course of our detailed enquiry, we also felt that it is possible that an attempt is also made not to expose everything in connection with the erupted scandal but to brush at least some of the aspects under the carpet. This is also an unhappy augury for the working of our institutions. 16. We shall first summarise the evidence in the light of the facts set out in support of the charges framed. The evidence 17. As has been noticed, the Main written examination for the post was conducted on 18. 3. 2001 and the scanning of the Mark Sheets took place on 23. 3. 2001. Respondent No. 3 joined the Commission as a Member on 8. 5. 2001. The charge against respondent no. 3 is that on 25. 4.

2002 the Controller of Examinations Mr. Sarode (PW. 15) visited respondent no. 3 at her residence at her behest. According to the facts in support of the charge, Mr. Nitin Sathe was also present at that time at the residence of respondent no. 3. After introducing Mr. Nitin Sathe to PW. 15, respondent no. 3 told PW. 15 that a List of 24 candidates furnished by Nitin Sathe for favourable treatment while evaluating the results, were her own candidates and that PW. 15 should do all that is possible to. help those candidates. The further charge. is that she . I also told PW. 15 that he should work in conjunction w,ith Nitin Sathe in future also so that benefit could be had by all by such association. Respondent No. 3 while admitting that she had met PW. 15 at her residence, flatly denied that Nitin Sathe was present on the occasion, that she had introduced Nitin Sathe to PW. 15 and had told him about a list of24 candidates or about the prospect of working together in future.

According to her version, PW. 15 had come to .. _ her residence to discuss the problem of his son who was doing his course in Bachelor ofCommerce and she being a Commerce graduate, he wanted her ,__ help in correcting the course of his son's carrier. 18. In support ofthe second charge, it is alleged that an internal enquiry was conducted into the complaints received and during the enquiry respondent No. 3 summoned Sarode and directed him· not to disclose the name of Nitin Sathe in the ongoing enquiry. This, on her part was an interference with the enquiry which amounted to misbehaviour. On her part the respondent had denied that she issued such a direction to Sathe. \, 19. In support of the third charge it was alleged that Poorva Joshi, the daughter ofrespondent No. 3 applied for appearing in an examination conducted by the Commission from two centres and that she failed to disclose that fact _to the Commission.

Though the respondent admitted this fact she pleaded that she had no such obligation since such an obligation to disclose rested only on employees and officers of the Commission and not on its members. She also took up the stand that her daughter had actually not appeared in the examination. 20. In support of the fourth charge it was set out that the respondent had got Nitin Sathe to threaten PW 9 Apama Dubey and compelled her to withdraw her original complaint and to make a second representation to the Commission handed over to the respondent which she received and handed over to the acting Chairman Wani. On search ofher residence the representation wherein the seal ofthe Commission was recovered. The documents were not once handed over to her officially. 21. PW. 15 in his chief examination by way ofaffidavit in this Court, had ~sworn to the fact that he had made a free and voluntary confession on 28. 11.

2002 before the Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai SAYALEE SANJEEVJOSH~ MEMBER, MAHARASHTRAPUBLIC SERVICECOMMISSION (BALASUBRAMANYAN. I. ) 135 regarding the irregularities and illegalities in the working of the Maharashtra Public Service Commission and its concerned Members and Officers which came to be known as M. P. S. C. Scam. He had made the confession while he was in judicial custody. During the relevant period, he was working as the Controller of Examinations. He had given the details in his confession which was a free and voluntary one. He has further sworn : "I say that, sometime in the month of April-2002, Smt. Sayalee Sanjeev Joshi, member of the Maharashtra Public Service Commission, asked me to meet her at her official residence. During this period the process of declaration of results of the Police Sub-Inspector & Sales Tax Inspector/Assistants Exams-1999, was in its final stages. That, when I visited the official residence of Smt.

Sayalee Sanjeev Joshi on 25. 4. 2002 she introduced me to one Mr. Nitin Sathe, who was already present there. I say that, while entering the official residence of Smt. Sayalee Sanjeev Joshi, I made an entry of my visit in the visitors book kept at her official residence. During this meeting at her official residence, Smt. Sayalee Sanjeev Joshi told me that the 24 candidates supplied by Mr. Nitin Sathe were her own candidates and the interests of these candidates were to be protected and these candidates were to be selected for the above said Police Sub Inspector/Sales Tax Inspector/Assistant Exam-1999. I say that, these candidates had qualified in the. Main Examination of Police Sub-Inspector & Sales Tax Inspector/Assistants Exam-1999. That, during the said meeting Smt. Sayalee Sanjeev Joshi also put forward a proposal to me that I should work with Mr. Nitin Sathe in the future for mutual benefits. Smt.

Sayalee Joshi had called me to her residence on lst May 2002 also and she again told me that I should not disclose. the name of Shri Nitin Sathe to anyone during the enquiry. I have made an entry of this visit in the visitor's book kept at the residence of Smt. Sayalee Joshi. " The confession referred to was marked in evidence as Ext. 53. 22. The visit of PW. 15 to respondent no. 3 at her residence on 25. 4. 200. 2 is corroborated by the visitors' register kept at the building in which respondent no. 3 was residing. That visit is also not denied by respondent no. 3. In his confessional statement PW. 15 had stated : "the work of the result of the examination was in last stage, somewhere in the month of April-May 2002, Smt. Joshi, Member of the Commission asked me to meet her at her house. Meantime, Smt. Dhamdhere had started inquiry on the basis of anonymous complaints. When I went to the house of S. mt. Joshi that time, one Nitin Sathe was present there. Smt.

Joshi told me that 24 candidates supplied by Nitin Sathe were of her own. Hence she instructed me not to disclose the name of Nitin Sathe in the inquiry. In the same meeting, she also put forward a proposal before me to do the same work in future with the help of Nitin Sathe. At the same time, an advertisement was published for the recruitment of the Gazetted officers in the State Service. Smt. Joshi told me that her daughter was one of the candidates. She also suggested to me that we had to pass her in the examination. I told her that it was not possible. " 23. In his cross-examination on behalfofrespondent no. 3, it was brought out that PW. 15 was associated with the Commission from the year 1972 onwards. He joined as an Assistant and rose to the position of Controller of Examinations. It was suggested to him that Dr. Kamik who became the Chairman ofthe Commission was responsible for his elevation to the position ofController of Examinations.

It was also brought out that at the time he was appointed as the Controller of Examinations, Mr. Edwankar was senior to him amongst the Deputy Secretaries. PW. 15 asserted that he got the post on the basis of seniority and accepted it, though he was reluctant. It was a post that carried a huge responsibility. He agreed with the suggestion that two reasons combine insofar as what came to be called the Scam of 1999. They were, one of letting every candidate appear for the Main Examination and secondly the decision to re-scan the answer sheets. He also admitted that some persons had collected money from the candidates promising that they would be allowed to take the Main Examination. Those candidates were the unsuccessful ones in the Preliminary Examination.

It was also brought out that based on a conspiracy, the candidates who had failed were induced to hold a demonstration in front of the office of the Commission so that the Commission could take a fresh decision based on their alleged grievance. It was also brought out that the meeting with regard to the 1999 re-examination took place on 29. 11. 2000, at a time when respondent no. 3 had not joined the Commission. To a question, he answered that answer sheets of those from whom money had been taken, were to be changed, but it became impossible because of him, because he refused to be a part of the game. He stated that there were lot of complaints and Public Interest Litigations in the High Court and as a result of those complaints, the charge of Controller of Examinations came to be taken away from him pursuant to the order of 8. 4. 2002. passed by Mr Wani who was then the Acting Chairman ofthe Commission. He also admitted that in May 2002, the Secretary to the Commission Mrs.

Seema Dhamdhere had commenced her enquiry. He also admitted that he was the first person to be arrested in connection with the M. P. S. C. Scam. He was arrested on 29. 6. 2002. He also .. stated in paragraph 24 that : "Till I gave my confessional statement I did not SAYALEI! SANJEEVIOSll~MEMBER, MAHARASlflRAPUBLICSERVICECOMMISSION (BALASUBRAMANYAN, J. ) 137 write any letter or written intimation either to the court or to the police about the involvement of the respondent Mrs. Joshi. " He asserted that loss of face 7 had led to his repentance and that had induced him to make the confession before the Metropolitan Magistrate. It was suggested to him that a complaint file came to be opened against him containing personal allegations and the allegations were about his misbehaviour with lady employees. It was suggested to him that he had a special relationship with Dr. Karnik and Dr.

Karnik had deliberately shut his eyes to the existence of the personal file of complaints against him while promoting him as the Controller ofExaminations. He admitted that he was called up and a written intimation was also sent to him from the Commission with regard to the affidavit in chief examination that he had filed in this reference. He knew that he was swearing to the affidavit as a witness. He was aware that he would be a witness against one ofthe accused in favour ofthe prosecution. Then he stated : "It is not true that I gave the confessional statement falsely to save myself. It is not true that I swore to the affidavit in this reference falsely to save myself. It is not true that a promise was held out that if I made a confessional statement and swore the affid(! vit I would be made approver and I would get free from the botheration ofthe prosecution. It is not true that I never felt any repentance. It is not true that this stand is adopted by me to save my skin.

" (paragraph 31). Regarding the meeting with respondent no. 3 this was what was brought out·"I cannot mention the date but it was in April 2002 that according to me the respondent called me. It was either in the second or third week of April 2002. I did not tell this fact to anybody that the respondent had called me as just mentioned. She had called me to her chamber in the office and told me to meet her at her residence. The date was not fixed on which I should see her at her residence. I had mentioned in my confessional statement that this event took place sometime in April-May 2002. It is true that in the confessional statement the date 25. 4. 2002 was not specifically mentioned by me. In my confessional statement I did not mention that I met the respondent on 1. 5. 2002. In fact there is no mention of my second visit at all in my confessional statement.

I did not disclose to anybody in the office of the Commission the fact of my visit to the residence of the respondent either on 25. 4. 2002 or 1. 5. 2002. I had not mentioned in my confession that I made entry in the visitors book when I visited the residence of the respondent. I had not given the list of the 24 candidates either in my confessional statement or in my affidavit in this reference (see page no. 3 of the affidavit). " (paragraph 32). He admitted that : "it is true that the fact that the respondent told me in connection with the 24 candidates that the interest of those candidates were to be protected is not mentioned in my confessional statement. Volunteers: Whatever I could recollect was mentioned in the confessional statement. It is true that it is not mentioned in my confessional statement that those candidates had qualified \:. " in the main examination of Police Sub Inspector and Sales Tax Inspector/ Assistants exams 1999.

The facts just referred to in relation to my confessional statement and the affidavit were not mentioned by me to ·anybody in the interregnum. As far as the question as to whether I agreed with what according to me the respondent proposed, I say that by then the finalisation of the result was in progress and nothing was in my hand. " (paragraph 33). He denied the suggestion that the respondent had never called him on 25. 4. 2002. He also denied the suggestion that he visited the respondent on that day on .... the pretext that his son was not getting through his B. Com and since the respondent belonged to that faculty she could give necessary guidance. He "' denied the suggestion that the real reason for his visit to the respondent was that he wanted to create a soft corner with the respondent because his name had appeared in the anonymous complaint.

He denied the suggestion that he saw the respondent in her chamber with a request to see to it that no prosecution was started against him and he offered that he was prepared to submit his resignation when it became clear that the matter would escalate. - He denied the further suggestion that the respondent had spumed his request. He admitted that he could have refused to swear to the affidavit in tlil5 reference. He had not talked to anyone in the Commission before he swore to the affidavit in chief examination. He denied that the recitals in his affidavit about Nitin Sathe having met him in the manner mentioned therein were incorrect. He denied the suggestion that the respondent never sought his help in any manner for helping her daughter Purva as stated in his affidavit. He denied the suggestion that the affidavit filed by him was prepared as instructed by Mrs. Seema Dhamdhere.

He denied the suggestion that his entire evidence was false and was being given under the threat of the police and as an exercise in self preservation. . , 24. The confessional statement marked Ext. 53 was also proved through the Metropolitan Magistrate who recorded it examined as PW. 14. In his chief examination PW. 14 submitted that he was working as Metropolitan Magistrate, 23rd Court, Esplanade, Mumbai. Then Sorode (PW. 15) was produced before him as per the directions ofthe Sessions Court, Mumbai. Sarode was produced from custQdy in the Central Jail. He stated that when PW. IS was produced before him he asked all police personnel and other persons to vacate. this Court. He confirmed from the witness that no body connected with this case was present in the Court and allowed only two constables on duty in the Court for his safety to be present. When PW. 15 wanted to make the statement SAYALEE SANJEEVJOSHI, MEMBER, MAHARASHTRAPUBLIC SERVICECOMMISSION (BALASUBRAMANYAN, J.

J 139 voluntarily he had put certain questions and recorded the answers. The witness had stated that he wanted to make a confessional statement. He had on the first day sent PW. l S back to custody with a direction that he be produced again on 25. I l. 2002. On 2S. I l. 2002 he again asked PW. IS whether he wanted to make a confession and he stated that he wanted to make a confession voluntarily. He also ascertained that PW. IS had not been ill~ treated while in custody. PW. IS had told him that he was repenting for the act done by him and that had induced him to make a confessional statement and to reveal the truth and to help the law. PW. 14 had given PW. lS further 24 hours to rethink on his wanting to make a confession and had directed that he be produced before him on 26. I l. 2002 but PW. lS was produced before him on 28. 11. 2002 due to some administrative reason. After ascertaining that thb confession was being made freely and on his own volition by PW.

15, he recorded the confessional statement. He recorded it after ensuring that no one interested in the case was present in court. After the completion of tHe recording of the confessional statement, he obtained the signature of PW. 15 in the recorded statement. He also countersigned it. He, thereafter, endorsed that the statement was recorded in his presence and it was a full and trite account of what PW. IS had stated. Before he made the confession he had issued a warning to PW. IS that he was not bound to make any confession but if he made one, the same would be used as evidence against him. He also certified the grounds on which he believed that the confession was genuine and recorded the precautions taken by him while recording the confessional statement. He put the confessional statement in a sealed cover and submitted the same on 28. 11. 2002 to the Registrar, City Sessions Court, Greater Mumbai in compliance with the order of the Sessions Judge, Greater Mumbai.

In his cross-examination, at the instance of respondent no. 3, he reiterated that PW. I5 was brought before him on two or three occasions before he recor~d the confession. He had recorded the entire confession in the open Court. The >doors were all kept open. PWJS was making the statement in the form: of narrative and the. confessional statement was dictated by PW. 14 to the Typ,ist. He interrupted PW. IS only when he found that PW. IS was mentioning 1 something that was unnecessary or was getting unnecessarily verbose or irrelevant. There was no mention of these interjections in the confessional statement recorded by him. The basis for deciding that a particular state~t was irrelevant was whether he travelled beyond the scope of MPSC case. facts of the MPSC case were mentioned in the letter that was given to him -t by the prosecution. That letter was handed over to him about four qays before the recording ofthe confessional statement.

He had asked the questions in Marathi and not in English. He had transiated the statement into English. He was also a Maharashtrian and his mother tongue was Marathi. PW. IS was fluently talking in Marathi. He was conversant with the provisions ofCriminal Manual. It was true that there was a provision in the Manual that as far as possible such statement should be recorded in the language of the accused and if it was not practical then in the language of the Court in English. He became aware of the contents of the confessional statement since he had dictated it and read it over to PW. 15. There were two parts in the confession, namely, relating to some of the accused in the first part and relating to the respondent in the second part. In the first part there was a reference to the main conspiracy and also a reference to his own participation in the said conspiracy. Going through the second part that pertains to the respondent he could say that PW.

15 did not mention that he agreed with the proposal of the respondent. It appears that as far as the respondent was concerned according to PW. 15, either he declined the proposal of the respondent or he was just a listener thereof. He agreed that it would have been better to have recorded the confessional statement in Marathi. He came to know through a police officer, sometime in January 2006, that he had to file an affidavit before this Court. The officer concerned was ACP Poojari. He did not sign the affidavit on the same day that the ACP visited him. First of all he addressed a communication to the Chief Metropolitan Magistrate informing him that he had been asked to submit the affidavit he had submitted in this Court as per a letter ofthe Secretary ofthe Commission. The Chief Metropolitan Magistrate had written to the Secretary of the Commission that being a judicial officer, PW. 14 was not supposed to file such an affidavit.

But he was informed that filing of the affidavit was necessitated as per the directions of this Court. It was only thereafter he signed the affidavit in c~ief examination. He had told the officer concerned that he had only recorded the confessional statement of PW. l5 and that his affidavit should remain restricted only to the statement of those facts. He had indicated what should be the contents of the affidavit and thereafter it was drafted and shown to· him. The officer had brought it to him, he had read it and signed it. He had told the officer that he had nothing to do with the respondent and his affidavit should be restricted only to the recording of the confessional statement of PW. 15. 25. Going by the procedure set down by this Court in the decisions referred to earlier, the admissibility and relevance of a piece of evidence has to be decided by this Court. In that context an argument was raised by learned counsel for the third respondent that Ext.

53, the confessional statement was not admissible in evidence. It was alleged to be that of a co-conspirator and SAYALEE SAllJEEVJOSHI. ME~mER. MAHARASHTRA PUBLIC SER\1CECOMMISSION fBALASUBRAMAllYAN. l. f it did not relate to and under Section 10 of the Evidence Act it could not be . _, admitted as evidence since it was a statement made by one conspirator in the absence of the other with reference to past acts done in the actual course of carrying out the conspiracy after it had been completed. Relying on the decision in Mirza Akbar v. King Emperor, AIR (1940) PC 176 counsel submitted that things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence.

But it would be a very different matter to hold that any narrative or statement or confession made to a third party after the common intention or conspiracy was no longer operating and had ceased to exist as admissible against the other party. There is then no common intention of' the conspirators to which the statement can have reference. 26. He also referred to the decision of this Court in Jayendra Saraswathi Swamigal v. State ofTamil Nadu, [2005] 2 SCC 13 wherein it was held that only ifprima facie evidence ofexistence ofconspiracy is given and accepted, . , evidence of acts and statement made by one of the conspirators in furtherance of the common object would be admissible. He pointed out that in that case statement of alleged co-conspirators was sought to be used to imp'icate the / appellant-accused and it was held that having been recorded long after the event when the conspiracy had culminated, that was not admissible. 27.

We do not think that it is necessary for us to rule finally on this question since that would be a matter for consideration by the appropriate criminal court wherein respondent No. 3 has also been prosecuted. In the proceedings before us we have the evidence of PW 15 who allegedly made the confession Ext. 53 and the evidence of PWl5 before us is sought to be corroborated with reference to a prior statement or confessional statement made by him before PW 14. The recording of the statement has been proved ' before us by examining PW 14. It is really a case of appreciating the evidence of PW 15 before us in the light of all the circumstances disclosed, including the making ofa previous statement by him which according to the Commission corroborates or supports his present evidence. Though Ext. 53 may or may not be used as evidence ofconspiracy in terms of Section I0 of the Evidence Act, we think that the same C(!

n be used as a corroborative piece ofevidence being a previous statement made by PW 15. We are, therefore, of the view that Ext. 53 cannot be totally discarded while considering whether respondent No. 3 -I has been guilty of misbehaviour in this inquiry under Article 317 of the Constitution. For the purpose of deciding the question whether respondent No. 3 is guilty of misbehaviour, it may not be necessary to establish the existence of a conspiracy when we consider the charges ·that have been framed and charge No. I which is the subject matter of this discussion. We are more concerned with the acceptability of the evidence of PW 15, as to wh. -:ther respondent No. 3 did in fact introduce him to Nitin Sathe, whether she told him that the list of 24 given by Nitin Sathe included her own people and that PW 15 should help them through the examination, that he must work in coordination with Nitin Sathe for their mutual benefit and that he should help her daughter Poorva to qualify. 28.

PW I0 Jyoti Shidojirao Desai deposed in her chief examination that she was a candidate for the MPSC Examination which was held in 2000. She had passed the preliminary examination and she had failed in the main examination. She had given a detailed statement to the Investigating Offi in that behalf is incorrect. It is true that I had given out the address of Rajendra Nagar in the 1999 examination also. I now say that I do not remember if I had given that address then. " 29. PW 12 Valmiki Shivram Ohwal swore in chiefexamination that he was working in the Maharashtra Public Service Commission since 1980 as a peon and in the year 1996 he was promoted as 'Naik'. He has spoken about the 1999 Competitive Examination for the recruitment of Police Sub-Inspector and Sales Tax Inspector/Asstts. Conducted by MPSC in three stages, preliminary examination, main examination and physical test/interview. He continues as a peon/Naik and in the year 2002 he was attached to respondent No.

3, a Member ofthe Commission and used to go along with her outside Mumbai for interviews. At the time of interviews of the examination 1999 he was at the Circuit House, Pune along with respondent No. 3 and at that time Nitin Sathe and one Kailas Jadhav used to come at the interview place i. e. the Circuit House, Pune. In the year 2002 he had received a call at the office of respondent No. 3 from Nitin Sathe. He told Nitin Sathe that respondent No. 3 was busy in a meeting. Nitin Sathe told him to convey the information of his ~· phone call to respondent No. 3 as and when she became free from the meeting. ' In his cross examination he stated that he continued in the service of the Commission even now. He was attached to the establishment section of the Commission. This statement was recorded by ACP only once and that was in the year 2004. It was taken on 19. 1. 2004. His statement was recorded after the present reference was made to this Court. He could not speak in English.

He gave his statement in Marathi and it was recorded in English. He asserted "it did so happen that I received a telephone call to the fact that I should inform Madam that the caller had called up. I cannot remember the date, day, time and the year but the said telephone call was received. " Every member of the Commission had a cabin. He would open the cabin in the morning and close it in the evening. The dusting and sweeping was done at about 8. 30 am by Hamals and for that purpose they would take the key from the security guards. He would report for work between 9. 15 am and 9. 30 am. The members of the Commission report for work at about 10. 30 am and they remain there till 4. 00/4. 30 pm. Family ofthe respondent was based at Pune. She would visit Pune during week end and holidays. The respondent would leave for Pune in the evening preceding non-working Saturdays and would return on the morning of Monday. Whenever she came back from Pune, she would report for work at about 11.

00/11. 30 am. His affidavit filed in court was prepared by a clerk in the Commission and it was not prepared as per the dictate of ACP Pujari. 30. PW 17 Poojari in his chief examination stated that on the complaint of Seema Dhamdere, Secretary, Maharashtra Public Service Commission, ·Mumbai he registered an FIR on 20. 6. 2002 vide ACBCR No. 33/2002 under Sections 409, 418, 420, 465, 466, 467, 468, 471, 477(a), 380, 381, 457 read with 120(B) of Indian Penal Code read with 13{l)(d) of Prevention of Corruption Act, 1988 and commenced investigation. He first arrested Sarode, the Controller of Examinations and subsequently arrested the others. Till date, 29 persons were arrested. The investigation is continuing with the permission of the , \- ·Special Court, Mumbai. According to him during the course ofthe investigation the stages of conspiracy in the conduct of PSI/STI/Asstt.

, 1999 examination of MPSC was revealed as under: SAYALEE SANIEEVJOSHL MEMBER,'MAHARASHTRAPUBLIC SERVICECOMMISSION [BALASUBRAMANYAN,I. I 145 7 "I. Collecting huge amounts from the prospective candidates with an assurance ofsuccess in the said MPSC examination immediately after the advertisement for the said post (April 2000 onwards). II. Ensuring by manipulation that all the students (even those who had failed the Preliminary examination) appeared for the main written exam and later qualify through the interview to be held for recommendation to the posts (August 2000 onwards). III. Procuring original blank answer sheets for the purpose of forging answer sheets to be subsequently filed in with the correct answers (29. 3. 2001 onwards) IV. Offering huge amounts to the employees ofMPSC with the intention to subvert their integrity and to include them in the said conspiracy (On or about May 2001). V.

Obtaining illegally, the keys of the cupboard where mthe answer sheets are kept (on or about July 2001). VI. Entering the MPSC Office using duplicates ofthe original keys, for the main and rear doors which were kept at Mantralaya and then substituting the original answers sheets with the forged marked answer sheets. (On or about 21/22 July 2001). VII. Tampering with the MPSC computers containing scanned data with original answer sheets for the said examination which will facilitate the re-scanning offorged answer sheets which were to be later replaced with the original. (On or about 25th July, 2001). VIII. Ordering a re-scan to be conducted after a gap offew days from the data of tampering of computers and replacing the forged answer sheets. (On or about 27th July, 2001). IX. Selecting the unmerited candidates on the basis of increased marks assessed after re-scanning.

Selecting the unmerited candidates by flouting all rules, under the pretext of rechecking and calling answer sheets out of Headquarters i. e. Mumbai Office to Pune (2nd August, 2001 onwards). __, X. Managing Physical test and interview for final selection (15. 10. 2001 to 16. 3. 2002). " 3I. He deposed that during the course of the investigation, at the fmal >;stage the statement of respondent No. 3 was recorded in the capacity of a witness. However, later on, on getting evidence Of respondent No. 3 having joined the conspiracy, she came to be arrested in this case on 8. 6. 2003. He stated that sanction for prosecution has been accorded. Respondent No. 3 was arrayed as accused No. 22. Prior to her arrest, her residence at Nilambri, Church Gate, Mumbai, was searched. The search resulted in recovery of confidential MPSC documents including certain papers relating to a candidate Kumari Apama Saheblal Dubey who was also a witness in this enquiry. A Panchnama had been prepared.

According to him during the course of 'investigation it wa. s revealed that respondent No. 3 was in regular contact with the accused persons vide CR No. 33/2002 like Nitin Sathe who was earlier ,_ arrested in CR No. 27/I 996 relating to the Maharashtra Public Service ' Commission paper leakage case. It was also revealed during investigation that . respondent No. 3 was in contact with accused persons like Kalash Pandurang r Jadhav, who was conducting classes at Barshi, Solapur for competitive examinations conducted by the Maharashtra Public Service Commission. Respondent No. 3 was also found to be in contact with Kailash Jadhav from her telephone No. 267054I between 27-2-2002 and 22-3-2002. Kailash Pandurang Jadhav was arrested in the present case on 29. 11. 2005 and was presently in judicial custody. He also stated that it was noted during investigation of respondent No. 3 that she was in regular contact with Mohammed Chand Mulani, father of a candidate, Riyaz Mulani.

Mohammed Chand Mulani was an accused in the famous Telgi Stamp Paper Scam. She was also in contact with candidate Riyaz Mulani. He has given evidence regarding the confession made by Sarode and about the fact that the respondent had met Sarode and had put him in contact with Nitin Sathe. He stated that the confessional ~ statement of Sarode was corroborated by the entry made in the visitors book t maintained at the residece of respondent No. 3 at Nilambri Building, Church Gate, Mumbai. The telephone print out received from service providers had revealed that respondent No. 3 had contacted accused Nitin Sathe from her office on telephone No. 22670541 to his mobile No. 9822484228 eight times between 28. 3. 2002 and 25. 9. 2002. She was in contact with Nitin Sathe from her residential office telephone 2820760 to his same mobile twenty times between ~ 30. 3. 2002 to 20. 5. 2002. Respondent No. 3 was using mobile No.

9869066882 and r from it she had contacted Nitin Sathe four times between 18. 5. 2002 to 27. 5. 2002 ron his mobile number and the land line No. 4362099 at Pune. The statement r ofApama Dubey who was allegedly threatened by Nitin Sathe at the instance of respondent No. 3 and who later on retracted the statement by making a f- ~ J • SAYALEESANJEEVJOSHI. MEMBER. 'MAllARASHTI!. A PUBLICSERVICE COMMISSION (BALASUBRAMANYAN, J. J 147 -i fresh application which was personally accepted by respondent No. 3 from her. The statement of Jyoti Desai who was contacted by accused Nitin Sathe and was offered success was. recorded. The statement of other candidates recorded during the course of investigation indicated that Nitin Sathe had collected huge amounts promising them success. The statement of Dr. B. S. Solunke, Member, MPSC, the statement of the peon of respondent No. 3, the statement of the husband of the respondent, Mr.

Sanjeev Joshi and the statement ofthe sister-in-law Neha Joshi were recorded. He also deposed that the special court had also taken cognizance of the offence committed by respondent . No. 3. 32. In his cross-examination he admitted that in the first charge-sheet, in the first supplementary charge-sheet and in the second supplementary charge-sheet, the respondent was shown as a witness. In the third supplementary charge-sheet also she was shown as a witness. But in the charge-sheet filed on 3. 9. 2003 the respondent as shown as an accused. Her statement was recorded on various dates. It was brought out that Nitin Sathe was arrested on 12. 11. 2002 iμid that Sarode was the first to be arrested on 29. 6. 2002. He had contacted Sarode on 25. 6. 2002 and had again interrogated him on 26. 6. 2002. Between 26. 6. 2002 and 29. 6. 2002 on which day Sarode was arrested no other·statements were recorded. After Sarode was remanded to judicial custody, PW.

17 had, With the permission ofthe Court, met Sarode in Jail. That was on 4. 10. 2002 and that was regarding the missing answer sheets of 5 candidates. He was shown Ext. 53, confessional statement and asked whether he was present at the time the said statement was opened before the Sessions Judge on 13. 12. 2002. He stated that he could not remember whether he was present on that day. He had questioned the driver of the respondent, but he did not remember whether had had questioned the maid servant. He had also made enquiries with the security guards of the building which contained the respondent's official residence. He had not shown to any of them the photographs of Nitin Sathe or Sarode. He had made enquiries with regard to the payment of money by the candidates. He had recorded the statements ofmore than 2000 candidates in this behalf. He stated that according to the respondent in her statement of 4. 12.

2002, Sarode had seen her at her residence in the last week ofApril in connection with the problem concerning his son's education. It was also her version that she owned a plot of land at Pune and she wanted to sell it and that she was trying to sell it through Nitin Sathe, who according to· her, was an estate agent. It was put to him that in an affidavit filed by the respondent before this Court, there was a reference to a public interest litigation allegedly at his instance and also to a private · ";" complaint under MCOCA filed by an accused Avinash Sanas against the witness. He stated that the allegations were looked into and rejected as being without substance. He had been serving the police department for the last 23 years. He denied that in a private complaint the Special Judge found a prima facie case against him. He had taken a certified copy of the order dismissing the complaint. He admitted that Dr. Kadam had made a complaint against him alleging harassment.

He denied the suggestion that when Dr. Kadam made a complaint he implicated the wife of Dr. Kadam also and she is also an accused. He stated that, however, it was true that the wife of Dr. Kadam was also an 1-accused. He had made enquiries with regard to the assets of Dr. Kadam. He admitted that a complaint was made against him and other police officers by one Mrs. Manisha Nichad who asserted that the same was also rejected. In paragraph 4 of his affidavit in chief examination he had mentioned the stages ofthe conspiracy and the period thereof. It was true that originally there were 22 charges against the responden~ before this Court and that only 4 charges were framed ultimately. Though the charge with regard to contact of the respondent with Kailash Jadhav and Mohammed Chand Mullani had been dropped, they were referred to in his affidavit to explain the contact of the respondent with Jadhav and Sathe. According to him charge no.

5 covered the l charge pertaining to Poorva, the daughter of the respondent. He denied the suggestion that these references were made by him in his affidavit merely to cause prejudice. He stated that there was sanction both by the Governor and the President. He denied the suggestion that he had indulged in arm twisting tactics as far as the respondent was concerned. He denied the suggestion r that he had falsely implicated her. It was not true that there was no evidence '~ against the respondent. It was not true that he had been after the respondent t I for her to tender her resignation from the membership ofthe Commission. He '· denied the suggestion that the confession of Mr. Sarode was inspired by him (. I during his meeting with him when he would be brought before the Court and on the pretext of recording his statement on 4. 10. 2002. He admitted that he ~ • had been to the Central Jail to meet Sarode on 4. 10. 2002.

He denied the suggestion that he had brain washed Sarode on the assurance t