1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR W.P. No.11811/2008 (s) Ku. Jayshree Nandeshwar Vs. The State of M.P. & another Present: Hon’ble Shri Rajendra Menon, J.& Hon'ble Mrs. Vimla Jain, J.______________________________________________________ Shri Manot Sharma, learned counsel for the petitioner. Smt. Nirmala Nayak, learned Panel Lawyer for respondent No.1. Shri V. S. Shroti, learned Senior Counsel with Shri Ashish Shroti, for respondent No.2. __________________________________________________
ORDER( ... 82013 ) Per : Shri Rajendra Menon, J.Petitioner who was a Judicial Officer has filed this writ petition challenging the orders Annexures P/1 and P/ 2 passed by the Disciplinary Authority and the Appellate Authority respectively removing her from service.
2. The Disciplinary Authority vide Annexure P/1 dated 22.1.2008 imposed the punishment of dismissal from service after conducting a departmental enquiry into certain 2 allegations of misconduct committed by the petitioner. On an appeal being filed vide order Annexure P/2 dated 19.8.2008 the Appellate Authority has modified the punishment to that of removal from service.
3. Petitioner claims to have a bright academic career having obtained the qualification of M.A., B.Sc., LL.B. It is said that in pursuance to an advertisement issued and the process of recruitment conducted by the Madhya Pradesh Public Service Commission in the year 1993-1994 petitioner was selected for appointment to the post of Civil Judge, Class II in the State of Madhya Pradesh. On being so selected, in May 1994 she was appointed as a Civil Judge Class II and joined on the said post on 24.5.1994 at Indore. She was posted in various places as indicated in para 5.3 of the writ petition and thereafter was promoted as a Civil Judge Class I in March 2004. It is said that in August 2005 she was transferred from Neemuch to Mandsaur as Civil Judge Class I. The order of transfer is dated 28.7.2005. However, due to certain personal reasons she could not join immediately. It is said that her mother was not well and ultimately she joined at Manawar on 18.8.2005. It is said that she had a unblemished service record till 2004 but in the year 2004-05 without any justification certain adverse remarks were made in her service record with regard to her conduct and work in Neemuch and Manawar by the then Portfolio Judge which is filed as Annexure P/3 and P/4. In these adverse entries with regard to her integrity was made and representations submitted by her are also rejected. The adverse entry mentioned, representations submitted and order rejecting the 3 representations are filed as Annexure P/3, P/3A, P/4 and P/5 respectively. Petitioner has said that adverse entries were made without proper scrutiny and are not correct.
4. However, while she was working at Manawar a charge sheet Annexure P/6 was issued to her on 8.4.2006, wherein five allegations of imputations were made vide Annexure P/7 and the list of witnesses and documents by which the allegations were proposed to be proved were indicated in Annexure P/8, P/9 respectively. Petitioner is said to have submitted her reply to the charge sheet on 23.6.2006 vide Annexure P/10. But being not satisfied with the reply a departmental enquiry was ordered. Shri M. K. Mudgal, the then District and Sessions Judge, Ratlam was appointed as a Enquiry Officer. The enquiry was conducted in which 8 witnesses were examined on behalf of the prosecution, two defense witnesses were examined and various documents were also exhibited. Thereafter, the Enquiry Officer submitted his report vide covering memo Annexure P/12 on 1.10.2007 and the detailed report of the Enquiry Officer is Annexure P/13. In his report the Enquiry Officer held charge No.(ii) and (v) as not proved, however, charge No.(i), (iii) and (iv) were found to be proved. Based on the findings of guilt recorded by the Enquiry Officer a show cause notice dated 15.10.2007 was issued and finally, the petitioner was dismissed from service vide order Annexure P/1 on 29.1.2008. She preferred an appeal vide Annexure P/15. The appeal was decided vide Annexure P/2 on 19.8.2008 and the punishment of dismissal from service was modified to that of removal from service. Challenging the orders Annexure P/1 and P/2 this writ petition 4 has been filed.
5. Shri Manot Sharma, learned counsel appearing for the petitioner referred to the imputations of allegation made against the petitioner in the charge sheet and submitted that as far as the three charges said to have been proved in the enquiry are concerned, charge No.(i) pertains to ante-dating an order passed on 27.7.2005 in MJ.No.44/2004 - Devi Lal and others Vs. Bhanwar Lal and others. It is said that even though the order was passed on 30 th July, 2005, behind the back of the counsel for not applicants the date of the order was changed and antedated as 27.7.2005 on extraneous consideration. Shri Manot Sharma, invited our attention to the statement of the counsel who had appeared for the not applicants in the said case, one Shri Tejpal Jain who was examined as prosecution witness No.2., referred to the findings recorded by the Enquiry Officer with regard to this charge and vehemently argued that this charge was not at all proved. He referred to the proceedings held in this case on 13.5.2005, 13.6.2005, 24.5.2005, 7.7.2005, 13.7.2005, 26.7.2005, 27.5.2005 and 30.7.2005, two applications filed by the said Counsel Shri Tejpal Jain, produced in the enquiry as Exhibit P/3 and P/5 and emphasized that the Enquiry Officer has recorded a totally perverse finding in this regard and merely because Shri Tejpal Jain was annoyed as his clients lost the case, a false and frivolous complaint was made. Taking us through the statements of Shri Tejpal Jain recorded in the enquiry, the findings recorded by Enquiry Officer with regard to this charge, Shri Manot Sharma emphasized that the charges are not at all proved and a perverse finding holding 5 the charge to be proved has been recorded. He submitted that even though there is allegation of corrupt motive and extraneous consideration with regard to this charge, there is no evidence to establish the aforesaid allegation and therefore, the Enquiry Officer has assumed existence of all these consideration without any material available on record. It is said that the findings recorded by the Enquiry Officer is his own ipse dixit and is not in accordance to the evidence available on record. In sum and substance with regard to this charge the submissions are that the charges are not proved and a perverse finding is recorded with regard to this charge.
6. With regard to this charge it was also submitted that the order passed by the petitioner in the case bearing MJ.No.44/2004 on 27.7.2005 was challenged before the High Court in Civil Revision No.33/2006 and the High Court on 5.1.2007 dismissed the revision filed by the not applicants which goes to show that the order passed by the petitioner was legal and proper and therefore, the allegation contained with regard to this charge cannot be said to be proved.
7. As far as charge No.(iii) is concerned, Shri Manot Sharma referred to the said charge and said that this charge pertains to certain orders passed by the petitioner in discharge of her judicial duties in a criminal case indicated in the charge sheet as Criminal Case No.199/2004 - State Vs. Aditya Singh and others. It is said that in this case filed against the accused persons under Sections 420, 467, 468 and 471 of IPC, petitioner discharged the accused persons on 29.5.2004 deliberately, overlooking the material available on 6 record. Shri Manot Sharma referred to the article of imputation with regard to this charge contained in Annexure 2 to the charge sheet, referred to the detailed imputation made therein and submitted that even though reference is made to Criminal Case No.199/2004 - State Vs. Aditya Singh and others, but the facts of the case stated in the imputation pertains to another Criminal Case bearing No.196/2004 having the same title - State Vs. Aditya Singh and others. It is emphasized that under Rule 14(3)(i) and 14(3)(ii) of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 a legal duty is caste upon the Disciplinary Authority to draw up the allegation of imputation which constitute the misconduct in a definite and distinct article. In this case the allegations were not drawn up correctly as the facts stated in the imputation did not pertain to Criminal Case No.199/2004. It was submitted by him that in an arbitrary manner the Enquiry Officer has held this charge to be proved. He referred to the findings recorded by the Enquiry Officer with regard to this charge, the reasons for holding the charge as proved and submitted that a perverse and illegal finding is recorded . He also argues that merely because petitioner has exercised her judicial discretion in discharging the accused persons based on the evidence and material that were available, in the absence of any improper motive or lack of integrity being established or existence of extraneous consideration being proved, the petitioner cannot be proceeded against for misconduct with regard to this charge. He emphasized that while discharging judicial duties the Judicial Officer cannot be punished merely because a wrong 7 decision has been taken. He refer to the judgment in the case of Ramesh Chandra Singh Vs. High Court of Allahabad - (2007)4 SCC 24.to say that for this charge petitioner cannot be punished and that the same is not proved, as an alternate argument it is also submitted that the allegation cannot be held to be a misconduct. That apart, with regard to this charge a specific objection was raised to the effect that the entire records and proceedings of Criminal Case No.199/2004 was not supplied to the petitioner well in advance and behind her back the file was accepted by the Enquiry Officer and reference made to the file while recording the findings. It is said that the vital document i.e. the record of Criminal Case No.199/2004 was not given to the petitioner in time and therefore, she was prejudiced in defending herself as relevant documents were not made available. Reference was made to the application filed by the petitioner to say that inspite of demand relevant documents were not produced. Accordingly, with regard to this charge apart from challenging the perversity of the finding recorded by the Enquiry Officer and saying that the charges does not constitute misconduct, certain procedural illegality in the matter of production of documents is also raised.
8. Finally, Shri Manot Sharma took us through the allegations with regard to article No.(iv) and submitted that the charge of not deposit of record for the month of May, 2004 in the record room till July 2005 is not correct. The allegations are not properly proved. The findings recorded by the Enquiry Officer with regard to this charge is also not correct. He emphasized that there was shortage of staff and 8 there was many delay in depositing of record and over looking all these facts the Enquiry Officer has held the petitioner guilty of this charge.
9. In sum and substance the argument of Shri Manot Sharma with regard to all the charges were that the Enquiry Officer has proceeded in the matter to record a finding of guilt against the petitioner in an illegal and perverse manner, the findings are nothing but the ipse dixit of the Enquiry Officer and they are contrary to material available on record. In support of the aforesaid contentions, Shri Manot Sharma relied upon the following judgments : Ishwar Chand Jain Vs. High Court of Punjab & Haryana and another - (1988)3 SCC 370.Surath Chandra Chakrabarty Vs. State of West Bengal - 1970(3) SCC 548.Ramesh Chandra Singh Vs. High Court of Allahabad & another - (2007)4 SCC 247.Kisan Degree College Vs. Shambhu Saran Pandey - (1995)1 SCC 404.State of U.P. Vs. Shatrughan Lal and another - (1998) 6 SCC 651.M. S. Bindra Vs. Union of India and others - (1998)7 SCC 310.and a unreported judgment of this Court in the case of Ashok Kumar Jain Vs. State of M.P. & Another (W.P. No.18563/2006(s) decided on 26.11.2012.
10. Shri Shroti, learned Senior Counsel with Shri Ashish Shroti, appearing for respondent No.2 and Smt. Nirmala Nayak, learned counsel appearing for the State Government submitted that in the present case the charge sheet was issued to the petitioner making five imputation of allegation and after conducting a departmental enquiry in accordance to the requirement of Madhya Pradesh Civil 9 Services (Classification, Control and Appeal) Rules, 1966 as adopted by the High Court and as applicable to the Judicial Officers working in the State, action is taken against the petitioner and as no statutory rule or regulation in conduct of departmental enquiry is shown to be violated, merely because the finding is said to be perverse, interference cannot be made.
11. Shri Shroti, learned Counsel took us through the statement of various witnesses available on record and emphasized that the contention of the petitioner that the Enquiry officer has recorded a perverse finding is not correct. At the very outset he referred to the allegation with regard to charge No.(iii). Shri Shroti, fairly stated that even though with regard to the said charge the case not is shown as Criminal Case No.199/2004 - State Vs. Aditya Singh but the order of discharge is correctly shown as 29.5.2004, however, in the imputation of misconduct, facts stated are not correct. He says that the facts stated in the imputation of the misconduct relates to case no 196/04 - State Vs. Aditya Singh & others but mentioning the wrong facts in article of imputation according to Shri Shroti has not caused any loss to the petitioner. He invites our attention to Annexure P/10, the reply submitted by the petitioner to the charge sheet, the explanation and justification given by the petitioner with regard to charge No.(iii). He refers to the explanation given by the petitioner and submits that the explanation given by the petitioner with regard to this charge pertains to Case No.199/2004 and merely because some wrong assertion is made in the article of imputation, the conduct of the petitioner in understanding the facts properly and defending it correctly 10 in the departmental enquiry goes to show that mere mention of wrong facts in the charge sheet has not caused any prejudice to the petitioner, Shri Shroti submits that these aspects have been considered by the Enquiry Officer. That apart, he points out that during the enquiry conducted the Enquiry Officer called for the original records pertaining to Criminal Case No.199/2004, the records were perused by the petitioner and at no point of time was any objection raised by the petitioner. Shri Shroti submits that in the enquiry petitioner was ably assisted initially by Shri C. S. Gupta, a retired District and Sessions Judge as her defence counsel and subsequently by another Officer namely Shri M. R. Kasiniya, the then Additional Principal Judge of Family Court, Indore. It is submitted that during the entire enquiry proceeding neither the petitioner not the defence counsel who were also Senior Judicial Officers holding the rank of District Judge raised any objection. Everybody understood the allegations with regard to Article of charge No.(iii) correctly and defended the matter after so understanding. Accordingly, it is said that in holding the petitioner guilty of this charge, no procedural impropriety has been conducted and as the petitioner has failed to demonstrate any prejudice caused due to the procedure followed, on such consideration, interference is not called for. In support of the aforesaid contention, he places reliance on the following three judgments : Krishnakali Tea Estate Vs. Akhil Bharatiya Chah Mazdoor Sangh and another - (2004) 8 SCC 200.State Bank of Patiala and others Vs. S. K. Sharma - (1996)3 SCC 36.and Union of India and others Vs. Alok Kumar - (2010)5 SCC Page 349. 11 Thereafter, he took us through the reasons given by the Enquiry Officer for holding the said charge as proved and argued that the petitioner was a Senior Judicial Officer having more than 13 years of service and in an important case like this where property worth Crores of Rupees was transferred in an illegal manner by misrepresentation, fraud and cheating, the petitioner discharged the accused persons without framing of charge that also by preponing the date of hearing and in a hurried manner. All this go to show that petitioner misused the official position to do undue favour to the accused persons. He referred to certain findings of Enquiry Officer to show as to how and in what manner discharge was ordered by the petitioner and argues that all these clearly shows that petitioner misused her office for conferring undue benefit to the accused persons. Accordingly, Shri Shroti submits that with regard to this charge petitioner is clearly guilty and in holding the petitioner guilty of charge no error has been committed by the Enquiry Officer.
12. As far as Charge No.(iv) pertaining to not deposit of record in the record room is concerned, Shri Shroti argued that the cases disposed of in the month of May 2004 which included Criminal Case No.199/2004 was never consigned to the record room till July 2005 i.e. for a period of more than one year whereas cases earlier to that were already sent to the record room. It was submitted that this was done only to avoid the record of criminal case No.199/2004 from going to record room. It is said that the aforesaid act of the petitioner in keeping the records without deposit the record in the record room for one year amounts to serious act of misconduct”
13. As far as charge No.(i) is concerned, Shri Shroti took us through the findings recorded by the Enquiry Officer, reasons given by the Enquiry Officer for holding the petitioner guilty of charges, he submitted that the finding is recorded by the Enquiry Officer based on due appreciation of the evidence available on record and the same does not call for any interference exercising limited jurisdiction available to this Court in a petition under Article 226/227 of the Constitution. Referring to the following judgments : Union of India & Others Vs. K. K. Dhawan - (1993)2 SCC 56.Union of India and others Vs. Duli Chand - (2006)5 SCC pg 680, Union of India and others Vs. Upendra Singh - (1994)3 SCC 35.and High Court of Judicature at Bombay Vs. Shashikant S. Patil and another - (2000)1 SCC Page 416, Shri Shroti argued that in a case pertaining to departmental action taken after conducting a departmental enquiry the scope of judicial review available to this Court in a writ petition under Article 226/227of the Constitution is very limited. The decision is not subjected to judicial scrutiny but it is only the decision making process which is subjected to judicial scrutiny. If the decision making process is found to be legal, in accordance to the requirement of rules and not tented with malafides or bias interference cannot be made by re-appreciating the evidence that came in the enquiry and record a different finding. It is said that interference with the findings can be done by this Court only if the findings recorded are found to be wholly unsustainable, contrary to the evidence available on record and beyond the principle of a prudent man approach in appreciating the evidence. Accordingly, submitting that in 13 this case a reasonable decision taken for punishing the petitioner for alleged act of misconduct does not call for any interference. He accordingly says that the punishment is proper and no interference be made.
14. We have heard learned counsel for the parties at length and perused the record.
15. Petitioner was a Judicial Officer namely, a Civil Judge Class I and at the relevant time when the action was initiated against her, she had more than 13 years of service. Just before the impugned action was taken in the year 2005 certain adverse entries with regard to complaints received against the petitioner were communicated vide Annexure P/3 on 8.4.2005. The then Port Folio Judge made a remark with regard to receipt of serious complaints against the petitioner which included acts of indulging in corrupt practice and taking of money in chamber, she was graded as "D" by the Hon'ble Chief Justice. Similarly, for the year ending 31st December 2006 complaints were received by the Port Folio Judge and the Hon'ble Chief Justice with regard to her integrity and she was graded "D". That apart, because of her acts of commission and omission the charge sheet in question was issued to the petitioner. Even though 5 allegations were leveled in the charge sheet, the Enquiry Officer found only three allegations proved in the departmental enquiry. The allegations proved are charge No.(i), (iii) and (iv). For the sake of convenience, the statements of article of charge framed against the petitioner vide article No.(i), (iii) and (iv) are reproduced herein under :
14. "Article I That on 30.7.2005, you with corrupt motive and extraneous considerations, passed an antedated order dated 27.7.2005 in MJ.No.44/2004 - Devilal and others Vs. Bhanwarlal & Ors. behind the back of the counsel for not applicant. ... Article III That, you with corrupt motive and extraneous consideration, gave undue benefit to accused Aditya Singh in Cr. Case No.199/2004 - State Vs. Aditya Singh and others under Sections 420, 467, 468 and 471 of IPC by discharging him vide order dated 29.5.2004 deliberately overlooking and discarding the material on record. Article IV That, you were very negligent in getting the records of disposed of cases for the month on May 2004 consigned to the record room in time. The disposed of records for the month of May 2004 were consigned to the record room in July 2005 i.e. after about more than a year, which shows negligence, lack of control and supervision on your part over the work of your staff, amounting to lack of devotion to duty."
A detailed imputation in this regard are available in Annexure 2 at Page 26 of the paper book”
16. As far as challenge to the action impugned in the present writ petition is concerned, challenge is mainly made on the ground that the Enquiry Officer has not considered the evidence properly. He has recorded a perverse finding based on his own ipse dixit without appreciating the evidence correctly and in a perverse manner. That being so, it is a case where challenge to the Enquiry report is made mainly on the ground of perversity in the finding. Except for contending that with regard to charge No.(iii) wherein certain documents with regard to Criminal Case No.199/2004 is not shown to the petitioner no other procedural impropriety or irregularity was highlighted or pointed out at the time of hearing. It was not at all the case of the petitioner that the enquiry conducted against the petitioner stands vitiated on any ground of procedural irregularity or illegality in conduct of the departmental enquiry. The only procedural impropriety raised was with regard to not production of records with regard to Criminal case No.199/2004, the same shall be referred to while dealing with the said charge. As no other procedural impropriety is alleged or canvassed at the time of hearing, we propose to analysis the submission of the petitioner and see as to whether the finding recorded by the Enquiry Officer calls for any interference.
17. As far as charge No.(i) is concerned it is alleged that in MJ.No.44/2004 - Devilal and others Vs. Bhanwarlal & Ors., an ante dated order was prepared on 30th July, 2005 and the case was shown to have been decided by an order passed on 27.7.2005. This case namely MJ.NO.44/2004 was an application under Section 151 CPC filed by one Devilal 16 seeking setting aside of a compromise decree passed in Civil Suit No.4A/2002 by a judgment and decree dated 26.2.1992. From the documents and the submissions made by Shri Manot Sharma at the time of hearing and on a scrutiny of the documents referred to by him particularly the documents filed along with I.A. No.11104/2013, it is seen that in this case Shri Shyam Chaturvedi, Advocate was appearing for the applicants and not applicants were represented by one Shri Tejpal Jain, Advocate. With regard to this charge, the proceeding seems to have been initiated against the petitioner due to the complaints and objections made by the counsel for not applicants Shri Tejpal Jain. This application was listed for hearing on 13.5.2005 when final arguments were to be heard. Shri Manot Sharma invited our attention to the order sheets of 13.5.2006, 13.6.2005 and various other dates upto 30th July, 2005 and tried to show that Shri Tejpal Jain, Advocate who was representing the not applicants was somehow trying to get the matter adjourned or postponed, he was not cooperating in early disposal of the matter and when the application under Section 151 CPC was finally allowed, he made a false and frivolous complaint only because he was annoyed with the petitioner due to loosing of the case. By submitting that the order passed by the petitioner on 27.7.2005 has been upheld by the High Court by dismissing the revision, Shri Manot Sharma wanted us to hold that this charge is not proved.
18. As far as this allegation is concerned, the main crux of the matter is as to whether the order was passed on 27.7.2005 or it was actually passed on 30.7.2005 and ante dated as 27.7.2005. In this regard if the documents available 17 on record are taken note of it would be seen that on 13.7.2005 the case was listed for pronouncing of order. Both the counsel for the parties Shri Chaturvedi and Shri Tejpal Jain were present but as the Presiding Officer was on leave on 13.7.2005, the Reader adjourned the case to 26.7.2005. On 26.7.2005 the applicant was represented by his Counsel Shri Shyam Chaturvedi and on behalf of the not applicant one Shri Ravindra Jain appeared. It was noted that the case is listed for proper orders and order sheet dated 26.7.2005 goes to show that case was directed to be posted on 27.7.2005 for pronouncing of judgment. In the order sheet dated 26.7.2005 even though signature of Shri Chaturvedi is available but signature on behalf of the not applicant or their counsel is not present. Thereafter on 27.7.2005 appearance of Shri Shyam Chaturvedi for the applicant is shown and the respondent is shown to be represented by Shri Ravindra Jain, Advocate. It is indicated in this order sheet that the case is fixed for passing order today, the order will be passed after it is typed. In the meanwhile, the order sheet records that the counsel for the applicant has filed an application indicating that after 13.7.2005 no date has been given, the case is being postponed and therefore, a date for judgment should be fixed. It was also pointed out that as the Presiding Officer has been transferred and as orders of her transfer has been received, she should not pass any order in this case. After recording objection as contained in the application it is indicated that the order has been typed and it is pronounced. This order sheet dated 27.7.2005 is only signed by the counsel for the applicant and it is not signed by the counsel for the not applicant. Finally 18 on 30th July, 2005 the order sheet is prepared to show that counsel for both the parties are present, counsel for the not applicant has filed certain application. The counsel today noted the order passed on the last date, he affixed his signature on the right margin and as the case is already decided, the application submitted by him are tagged and the record consigned to the record room. The Enquiry Officer has taken note of all these factors and it is found by the Enquiry Officer that in the order sheet dated 13.7.2005 the signature of both the counsels are present, in the order sheets of 26.5.2007 and 27.7.2005 signature of the counsel for the not applicant is not present and surprisingly even though in the evidence it has come that on 27.7.2005 the not applicant was represented by Shri Tejpal Jain, Advocate and he has submitted two applications Exhibit P/3 and P/5 with regard to complaint against the Presiding Officer, neither the signature of Shri Tejpal Jain, Advocate is available in this order sheet not his name mentioned. Instead the name of Shri Ravindra Jain is mentioned. The Enquiry Officer has scrutinized each and every aspect of the matter and has recorded a finding to say that when a controversy has arisen with regard to delay in passing of the order and when the counsel had made certain applications on 27.7.2005 raising objection on the ground that the Presiding Officer is transferred and therefore, she should not pass the order, under normal circumstances the Enquiry Officer feels that the signature of the counsel in the order sheet should have been obtained. The Enquiry Officer has scrutinized the records in detail and after finding that the signature of Shri Shyam Chaturvedi in three order sheets 19 seems to have been taken on the same day as they are exactly identical and in the same ink, the finding recorded is that the allegation of ante dating the order seems to be correct. The Enquiry Officer found that when in the evidence it has clearly come on record that Shri Tejpal Jain appeared and submitted the application Exhibit P/3 and when it is the case of the employee concerned that this application P/3 was given on 27.7.2005 then the signature of the counsel should have been taken in the order sheet of the said date. The Enquiry Officer has taken serious note of this aspect of the matter. Thereafter, the Enquiry Officer has analyzed the evidence in detail, has referred to procedure followed by the same Presiding Officer in various case with regard to not maintenance of the case diary properly after dates are fixed, not obtaining signature of the counsel, keeping the file for herself and the conduct of the Reader whose evidence is recorded as P.W.5 Shri Ashok Lahra to say that in the Court of the petitioner both the petitioner and the Reader are in the habit of signing order sheets and signing the orders even after they come back after leave by ante dating them. Taking note of the over all situation that have been existing a detailed analysis is made and the finding recorded is that allegation of ante dating are proved. This Court while exercising the limited jurisdiction in a writ petition under Article 226 of the Constitution does not sit over the finding recorded by the Enquiry Officer by exercising the powers of a Appellate Authority. If a reasonable finding is recorded after going through the evidence available on record and if the finding recorded is such that it is one of the conclusion that can be arrived at on 20 the basis of the evidence available then merely because there is a possibility of some other conclusion being recorded interference cannot be made into the matter. If the charge No.(i) and the findings recorded by the Enquiry Officer with regard to this charge are analyzed, it is clear that the finding recorded by the Enquiry Officer with regard to this charge is one of the conclusion that can be arrived at in the given set of circumstances and merely because some other conclusion can also be recorded based on the evidence available it is not appropriate for this Court to interfere into the matter. Accordingly, finding no ground to interfere on such consideration we see no reason to interfere with this aspect of the matter.
19. As far as charge No.(iii) is concerned, two grounds were canvassed in support of the aforesaid charge. Before considering the questions canvassed, it may be appropriate to see as to what are the allegations with regard to this charge. Case No.199/2004 - State Vs. Aditya Singh and others, is a case registered on the basis of challan filed by the Police Authorities. One Dr. Rustamji Contractor had certain property in District Neemuch and the said Shri Contractor was an aged person, more than 80 years of age, was residing in Badoda, Gujarat, he made a complaint to Superintendent of Police, Neemuch to the effect that with regard to his house situated in Neemuch which is costing more than Rs. 2 Crore, Shri Aditya Singh along with his friends Arun Kumar Sharma, Rajesh Manav, and Rajesh Upadhyay with the help of Notary Shri G. L. Kolariya, fraudulently prepared a forged Power of Attorney and based on the said Power of Attorney a sale deed 21 has been executed on 29.7.1998 selling his property worth more than 2 Crore. Similarly with regard to certain other transaction done by Shri Aditya Singh two other criminal complaints were made. The Police investigated the matter, obtained the opinion of handwriting expert with regard to signature in the Power of Attorney and finding a case for prosecution made out, filed the challan in the Court of competent jurisdiction on 16.10.2000 for offences under Sections 420, 448, 467, 468, 471, 474 and 120 B not only against Shri Aditya Singh but against four of his companions, Shri Arun Kumar Sharma, Rajesh Manav, Rajesh Upadhyay and the Notary concerned J.L. Kolariya. Even though the investigation was done in the year 2000 record indicates that challan was filed in the Court of Chief Judicial Magistrate in August, 2001. The matter was transferred to the Court where the petitioner ultimately joined, but before that from 2001 to May/June 2004 the matter was kept pending in the Court. It was being adjourned regularly for about three years as the accused persons were not appearing and the charges could not be framed. However, all of a sudden it is found that after the petitioner took charge of the Court, the date of hearing in the case was preponed and in a hurried manner even without framing of charge, accused were discharged. This was the allegation against the petitioner.
20. The allegation with regard to this charge sheet is challenged mainly on the ground that there is no evidence available on record to show that the petitioner had discharged the accused persons based on improper motive, malafidely and therefore, it was argued that as the petitioner has exercised her 22 judicial discretion in accordance to her understanding of the case and the law applicable, therefore, she cannot be subjected to any departmental enquiry not her act in discharging the accused persons can be termed as misconduct. Heavy reliance was placed to say that the act will not amount to misconduct by referring to the case of Ramesh Chandra Singh (supra) and Ishwar chand Jain (supra). It was submitted that when a bonafide exercise of power is done by Judicial Officer in discharge of the judicial duty and as if there is nothing to show to indicate that the delinquent has acted in a manner which can be termed as an act unbecoming of a Judicial Officer, departmental action cannot be taken.
21. As pointed out herein above the allegation against the accused was serious in nature. It pertains to sale of property worth Rs. 2 Crores by using of a forged Power of Attorney. The challan was filed in the Court of Judicial Magistrate First Class in July 2001 and for more than three years continuously the case was being adjourned. The case was being adjourned on various dates from August 2001 upto 24.6.2004 but all of a sudden when the petitioner joined at the Court in question after she was transferred to the present place in April/May 2004 till that date even charges could not be framed because the accused persons were not appearing and their Advocate was not arguing on the question of framing of charge. The Enquiry Officer has gone through the records and found that from the statement of P.W.5 Ashok Kumar Lohar, Reader, it is clear that the case was listed for framing of charge on 24.6.2004 but all of a sudden on 7.5.2004 an application was filed by the accused person Shri Aditya Singh 23 for preponing the date for hearing on the question of framing of charge. This application was directed to be posted on 12.5.2004 for orders and based on the order passed on this application on 12.5.2004, the case was taken up for hearing on 21.5.2004 by preponing the date. On that date arguments on charges were heard and on 29.5.2004 the accused persons were discharged. The learned Enquiry Officer has found that when the matter was pending since August 2001 what was the necessity in preponing the date from 24.6.2004 for hearing the arguments on 21.5.2004 and passing the order on 29.5.2005 when the matter was already pending and the accused person was not at all interested for more than four years in getting the matter heard or charges framed. This conduct of the petitioner in preponing the date and discharging the accused so hurriedly has been noted by the Enquiry Officer and a serious view noted. That apart, on merits of discharge the learned Enquiry Officer has found that the charges against the accused persons were serious and the petitioner has merely discharged the accused persons on insufficient material and even though there was enough material including the handwriting experts' report to say that the charge could be framed, the petitioner discharged the accused persons even without examining various important witnesses whose statements were available on record. The statement of the complainant Dr. Rustam Contractor was recorded by the Police Authorities who has clearly stated that the signature in the Power of Attorney is not his, he has not executed the Power of Attorney and Aditya Singh had forcibly broken the lock of his house and taken illegal possession and has sold the property. The statements 24 of various other witnesses were recorded by the police authorities and even the handwriting expert's opinion was there. Without framing the charge and getting all these witnesses properly examined in the Court, at the stage of framing of charge itself by holding that the statements of these witnesses are not convincing, it seems to be given under duress and doubting the tenability of the report of the Handwriting expert as it was based on examination of signature available in photocopies of certain documents, the accused is discharged. The learned Enquiry Officer from para 41 onwards of his enquiry report has meticulously analyzed the evidence available in the record of the challan filed by the police authorities in the criminal case and has found that when overwhelming prima facie evidence were available, discarding those evidence at the stage of framing of charge to be unbelievable and discharging the accused was not proper. The Enquiry Officer places reliance on judgments of the Supreme Court to say that in this manner the accused cannot be discharged when a prima facie material was sufficient enough to frame the charges. Taking note of the over all situation and the conduct of the petitioner in discharging the accused persons of such serious offences in a very casual and cursory manner the charge is found to be proved. The report of the learned Enquiry Officer gives various justification for recording the finding which are found to be reasonable and we see no reason to substitute the same by a different reason only because the petitioner has come out with a case that the allegations of corrupt motive are not established. Exercise of corrupt motive by Judicial Officer is very difficult to be 25 proved. Action taken by a Judicial Officer has to be scrutinized and analyzed based on the totality of circumstances available and in this case a finding is recorded by the Enquiry Officer after analyzing all the circumstances that were present. That being so, it is not appropriate for us to take a different view and we are also of the considered view that the circumstances present and the manner in which the petitioner proceeded to discharge the accused persons in the present case cannot be termed as a bonafide act of a Senior Judicial Officer like the petitioner.
22. Petitioner is a senior judicial officer, with more than 13 years of experience of working and in a criminal case involving sale or property worth more than 2 Crores by use of forged documents, petitioner has in a very casual manner discharged five accused persons that also when for more than four years the accused were not even cooperating in getting the charge framed. The petitioner pre-poned the dates, heard the case hurriedly and in a hasty manner passed the order. If the aforesaid conduct of the petitioner is analysed in the backdrop of the entries made by two Portfolio Judges and a Chief Justice, with regard to the complaints received against the petitioner, we are of the considered view that the conduct of the petitioner amounts to an act unbecoming of a judicial officer and we are not at all inclined to accept the arguments advanced by Shri Manot Sharma to the effect that the petitioner has been falsely implicated or that the allegations do not constitute misconduct. Discharging of the accused persons in the manner done by the petitioner has to be viewed seriously and if the overall conduct of the petitioner in doing 26 so is analysed in the backdrop of the adverse entries made in the CR Records of the petitioner, we see no reason to hold that the Enquiry Officer has recorded a perverse finding in this regard. The finding recorded by the Enquiry Officer seems to be a reasonable finding.
23. At this stage, it may be taken note of that various adverse entries have been made with regard to the conduct and integrity of the petitioner not only by the then Port Folio Judge but also by the then Hon'ble Chief Justice for the years ending 2004 and 2005. By amending the writ petition even though challenge is made to these adverse entries by only saying that the adverse entries are incorrect and as the charges levelled against the petitioner are not proved, the adverse entries should be expunged. However, the fact remains that some of the charges leveled against the petitioner are shown to be proved and the adverse entries have been made by the then Port Folio Judge and the then Hon'ble Chief Justice based on the complaints received by them from various quarters. No serious arguments are advanced or grounds raised at the time of hearing with regard to expunsion of these adverse entries. Therefore, we have analyzed the conduct of the petitioner and taken note of the adverse entries available on record which has attained finality after rejection of representation by the High Court and as no serious challenge was made to these entries at the time of hearing.
24. With regard to this charge the main argument of Shri Manot Sharma was that after indicating the case detail as Criminal Case No.199/2004, in the charge-sheet, the allegation of imputation as indicated in the charge-sheet is of a different case. This fact is 27 accepted by the respondents and also by the Enquiry Officer. However, it is found that even though the case number is shown correctly and facts of certain other case is indicated in the article of imputation, but when the petitioner submitted her reply to the charge-sheet, the petitioner gave her explanation with reference to the correct facts of Case No.199/2004. That apart, it may be taken note of that in the departmental inquiry petitioner was represented by a defence counsel, initially Shri C.S. Gupta – a Former District and Sessions Judge was engaged as defence counsel for the petitioner. Subsequently, the defence counsel was changed and one Shri M.R. Kasaniya, Principal Judge, Family Court, Indore assisted the petitioner in the enquiry. The order-sheets of the departmental inquiry contained in the original record of Enquiry – Part I goes to show that on various dates during the conduct of the departmental inquiry, records of Criminal Case No.199/2004 were produced, they were available with the Enquiry Officer; the Presenting Officer; the witnesses examined; and, the defence counsel of the petitioner had access to these records and on various dates between 6.1.2007 to 1.9.2007, the records were available with the Enquiry Officer. Under such circumstances, contention of Shri Manot Sharma that the record of criminal case was not produced in the inquiry seems to be not correct. Order-sheets of 6.1.2007, 2.2.2007, 5.3.2007 and 17.8.2007 goes to show that the records was sent by the Indore Bench of the High Court to the Enquiry Officer through the Registry on various dates, and finally after the arguments of the parties were over and when the enquiry was closed on 17.8.2007, on 1.9.2007 the Enquiry Officer directed for return of the record of Case No.199/2004 to the High Court, Bench at Indore. It is, therefore, clear that the records of the case were available with the Enquiry Officer, it was presented at 28 various stages in the inquiry, the petitioner and her defence counsel, who was a sitting Senior District Judge – a legally trained person, were aware of these fact and during the inquiry no objection was raised either with regard to the allegation of imputation being incorrect or the record being not available. It is a case where the petitioner – a judicial officer, has participated in the inquiry, took the assistance of another judicial officer – a senior District Judge as a defence counsel, permitted the inquiry to proceed, participated in the inquiry knowing fully well the facts and circumstances of the case, defended herself being aware of the fact that the imputation made in the charge-sheet pertains to Criminal Case No.199/2004, the facts stated may be incorrect, but in the inquiry all the correct facts were brought on record and all proceeded under the assumption that what is being done is right. Petitioner having accepted and participated in the enquiry is not estopped from turning around and saying that as correct facts were not indicated in the charge-sheet, the entire inquiry stands vitiated. The petitioner did not object to the same and has not demonstrated to us as to what is the prejudice caused to the petitioner because of the procedure followed. The petitioner having participated in the entire process of inquiry without any objection whatsoever and in the absence of any prejudice being caused or demonstrated, keeping in view the law laid down by the Supreme Court in the case of S.K. Sharma (supra), relied upon by Shri Shroti, we see no reason to interfere into the matter on such consideration. It is a case where even though there is some error in showing the facts with regard to a particular case in the charge-sheet, but when the inquiry was held the correct facts and material were brought on record, the records of the criminal case were available, the petitioner participated in the inquiry after seeing the records 29 without any objection, that being the factual position not she is debarred from raising all the grounds. Charge No.(iii) alleged against the petitioner is serious in nature and in holding the petitioner guilty of the said charge, the Enquiry Officer has not committed any error.
25. As far as charge No.(iv) is concerned, it pertains to non- deposit of record in the record room. Evidence available does show that with regard to Criminal Case No.199/2004, the record was kept by the petitioner for more than a year without depositing it in the record room and in doing so, petitioner has committed a misconduct in as much as she has failed to discharge her duties properly and the Enquiry Officer in recording a finding against the petitioner has not committed any error.
26. As already indicated hereinabove, petitioner has not challenged the departmental proceedings held against her on the ground that any procedural infirmity is committed in holding the inquiry. She has mainly assailed the inquiry on the ground of perversity in the finding and challenges the action of the Enquiry Officer in holding her guilty mainly on the ground that the Enquiry Officer has acted on his own ipse dixit.
27. While exercising limited jurisdiction available under Articles 226 and 227 of the Constitution, this Court does not sit over the decision of the Enquiry Officer as if it is exercising any appellate jurisdiction. Conduct of a departmental inquiry and taking departmental action is an administrative function. Scope of judicial review in such matters is very limited. Interference can be made only if rules of procedure, principles of natural justice are violated or if the final conclusion arrived at by the Enquiry Officer is found to be perverse or unsustainable to such an extent that it is beyond the perception of a prudent man’s approach. If a reasonable finding is 30 recorded based on due appreciation of the evidence and material that has come on record, interference cannot be made by this Court merely because under the given set of circumstances another view is also possible. Once the Enquiry Officer has recorded a reasonable finding and it is found that the finding recorded by the Enquiry Officer is based on a reasonable appreciation of the evidence available, interference into the matter by a writ Court is not called for.
28. If the facts and circumstances of the present case is analysed in the backdrop and the requirement of law as indicated hereinabove and if the principle for judicial interference into such matters as is laid down by the Supreme Court is applied, we are of the considered view that interference into the matter by this Court is not called for.
29. Accordingly, in the totality of the facts and circumstances, we see no reason to interfere into the matter. The petition is, therefore, dismissed. (Rajendra Menon) (Mrs. Vimla Jain) Judge Judge mrs.mishra 31 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR W.P. No.11811/2008
ORDERFor Consideration: ( RAJENDRA MENo.) JUDGE /03/2013 Hon'ble Smt. Vimla Jain, J.: ( SMT. VIMLA JAIN ) JUDGE /08/2013 POST FOR : /08/2013 ( RAJENDRA MENo.) JUDGE /08/2013