Judgment:
Aloke Chakrabarti, J.
1. The order dated 4.7.1997 at Annexure-6 to the writ petition passed under the order of Governor on the basis of recommendation made by the High Court removing the petitioner from service, has been challenged. Supplementary affidavit, counter-affidavit and rejoinder-affidavit have been filed.
2. Heard Mr. Ravikant, learned counsel for the petitioner and Mr. Sunil Ambwani, learned counsel for the respondent High Court.
3. Facts stated in the writ petition relevant for its disposal are that the petitioner while was posted as Additional District Judge was served with a charge-sheet and a disciplinary proceeding was thus initiated. Petitioner was placed under suspension by order dated 29.11.1995. After holding inquiry in the said disciplinary proceeding report was submitted 9.9.1996. According to the inquiry report, the charges 1 (i) partly, 1 (ii), 1, (iii), partly. 1 (viii). 2 (i), partly. 2 (ii), 2 (iii). 2 (iv) and 3 to 9 had been established against the petitioner. Opportunity having been granted, the petitioner submitted his comments on the inquiry report. The Administrative Committee of the High Court recommended award of punishment of reduction in rank to the petitioner. The Full Court of the High Court recommended punishment of removal from service.
4. Learned counsel for the petitioner contended that (i) charges levelled against the petitioner did not constitute misconduct. (ii) inquiry report is vitiated as based on nonexistent facts and surmises and conjectures, (iii) petitioner sufferedfrom discrimination as other officers having faced serious charges did not suffer extreme punishment of removal, (iv) recommendation of the Administrative Committee was not accepted without assigning any reason and (v) relevant documents having not been supplied amounted to violation of principles of natural justice.
5. Learned counsel for the petitioner in support of his first contention referred to the charge levelled against the petitioner and contended that even assuming that all those charges are proved, they did not amount to misconduct. It is stated that while discharging judicial duties as a judicial officer, petitioner granted bail considering the merits of the matter and, therefore, holding an adverse view with regard to such grant of bail, misconduct cannot be imputed. It has been contended that successive bail applications by the same accused are maintainable in law on fresh grounds and different considerations and in support of the same reliance was placed on the cases of Babu Singh and others v. State of U.P. AIR 1978 SC 527; Gama and another v. State of U.P., 1987 Cr LJ 242; Surath Behera v. State of Orissa, 1988 Cr LJ 1508; Rajendra Singh Sethia v. State, 1988 Cr LJ 749; Matru Singh v. State of U. P., 1986 All LJ 1504; Rajendra v. State of U.P., 1986 All LJ 1253 and Ahmod Nabi and another v. State of U.P., 1986 (23) ACC 119.
6. With regard to circumstances when bail can be granted, law has been referred to as decided in the cases of State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447 ; Bhagirath Singh Jadeja v. State of Gujarat, AIR 1984 SC 372 and Ram Kishare and another v. State of U.P., 1991 (28)ACC 458.
7. With regard to the contention that even after rejection of bail by the High Court, the Court of Session may grant bail to the same accused provided new substantial ground for bail is made out and reasonably long period has since lapsed and in support of such contention reference was made to the cases of Attar Singhv. State, 1991 (28) ACC 83 ; Mohan Lal v. State of U.P. and others, 1995 (32) ACC 159 and Chandramani Swain v. State of Orissa, 1993 (2) Crimes 659.
8. As regards delay in trial forming a ground for granting bail, reference has been made to the cases of Nathu v. State of U.P., 1987 All LJ 1211; Narain Rai v. State of U. P., 1989 All LJ 272 ; Dilip Kumar v. State of U. P., 1989 All LJ 1204 ; Mohammad Mian v. State of U. P., 1991 (Supp) ACC 224 ; Munna alias Kamta Prasad and another v. State of Madhya Pradesh, 1986 (3) Crimes 429 ; Ramroop Singh v. State of M.P., 1987 Cr LJ 1256; Jagdish Kumar v. State, 1990 Cr LJ 730 and Kalika Prasad Shukla v. State of U.P., 1993 (30) ACC 413.
9. Several other Judgments have been relied on by the learned counsel for the petitioner for showing facts on which bail had been granted and it has been contended that granting of bail by the present petitioner in similar facts could not be alleged as misconduct.
10. With regard to definition of misconduct, it has been contended by the petitioner that such judicial act of the petitioner could not come within the said definition and in connection therewith reference was made to the cases of State of Punjab and others v. Ram Singh Ex-constable, (1992) 4 SCC 54 ; Union of India and others v. J. Ahmad. AIR 1979 SC 1022 ; Union of India and others v. A. N. Saxena, (1992) 3 SCC 124 ; Union of India and another v. R. K. Desai, (1993) 2 SCC 49 and Union of India and others v. K. K. Dhawan, (1993) 2 SCC 56.
11. It has been further contended that mere suspicion, in absence of evidence pointing to guilt of delinquent, cannot result in adverse order in disciplinary proceeding and in this connection reference has been made to the cases of Nand Kishore Prasad v. State of Bihar and others, AIR 1978 SC 1277; Maharashtra State Board of Secondary and Higher Secondary Education a. K. S. Gandhi and others, (1991) 2 SCC 716 and Kuldeep Singh v. Commissioner of Police and others, (1999) 2 SCC 10.
12. On behalf of the respondents the learned counsel contended that charges which have been proved against the petitioner duly formed misconduct. It has been contended that in such disciplinary proceeding strict proof of charge upon strict compliance of Evidence Act is not required. The charges indicate that on specific design judicial decisions have been arrived at and specific allegations of corrupt practice have been made and, therefore, on such charges having been proved no interference can be made in a writ proceeding as a writ court is not to sit in appeal over an order of disciplinary authority.
13. Learned counsel for the respondents contended that petitioner's challenge to the impugned order is misconceived. The contentions relating to charges not constituting misconduct and inquiry and the report vitiated being based on surmises and conjectures, are the result of misconception as regards the charge-sheet itself. It is stated that the charge-sheet has to be read as a whole and if so read, a clear design is to be found as the charge. Incidents in various paragraphs under charge No. 1 are in support of the main charge itself. It is stated that inquiry report also is based on such charges and was based on materials on record and did not suffer from irregularity for relying on nonexistent facts or surmises and conjectures.
14. Contention of the petitioner regarding discrimination has been denied as results of disciplinary proceedings cannot be compared as facts involved are different. Moreover, no specific case has been alleged involving the charges similar to those levelled against the petitioner and, therefore, this objection does not require consideration.
15. With regard to recommendation of the Administrative Committee, it has been contended that after the inquiry report was submitted, the Administrative Committee made a recommendation but the actual order was to be passed by the Full Court and it has right to differ fromrecommendation of the Inquiry officer or of the Administrative Committee.
16. With regard to non-supply of documents, it has been contended that no specific case has been made out as regards particular document and, therefore, no such case having been made out, this contention of the petitioner is not required to be considered.
17. Learned counsel for the respondents referred to the law decided in the case of Union of India and others v. A. N. Saxena, (1992) 3 SCC 124 and Union of India and others v. K. K. Dhawan, (1993) 2 SCC 56 in support of the contention that in respect of judicial function of a Judicial Officer disciplinary proceeding is permissible as conduct of the officer in discharging his duties is being considered and not correctness or legality of his decisions. With regard to the scope of interference by Tribunal or Court in respect of a decision in a disciplinary proceeding law has been referred to as decided in the case Government of Tamil Nadu v. K. N. Ramamurthy, (1997) 7 SCC 101. With regard to the principles of granting bail law has been referred on behalf of the respondents as decided in the case of Bimla Devi (Smt.) v. State of Bihar and others, (1994) 2 SCC 6; State of Maharashtra v. Captain Buddikota Subha Rao, AIR 1989 SC 2292 and Shahzad Hasan Khan v. Ishtiaq Hasan Khan and another, (1987) 2 SCC 684. With regard to the nature of proof required in disciplinary proceeding law was cited as decided in the case of High Court of Judicature at Bombay v. Udaysingh and others, (1997) 5 SCC 129. Reference was also made to the case of High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil and another. (1997) 6 SCC 339 and Union of India and another v. C. Ganayutham, (1997) 7 SCC 463.
18. After considering the respective contentions of the parties. It appears that the charge-sheet annexed as Annexure-1 to the writ petition contains several charges. Out of such charges in the first chargeseveral instances have been given. After the said Instances charge continued to be narrated. On behalf of the petitioner, said instances contained in charge No. 1 have been referred to at the time of hearing for the purpose of showing that the same were judicial work and, Therefore, misconduct was not constituted. But, if the entire charge is read in totality, it appears that the charge was of a scheme in the action of the petitioner of allowing second bail application after rejecting the first bail application and there being no fresh ground and those orders on the second bail application were never consistent nor adhered to established norms and were passed according to whims ignoring norms of established judicial practice of criminal administration of justice. Such habitual entertaining and allowing second bail application without fresh grounds on extraneous consideration has been alleged as a misconduct.
19. Similarly charge No. 2 when read in totality without being detained separately on each example contained therein, it appears that the similar charge has been framed citing instances. Similar is the case with regard to each charge where specific allegation has been made citing either one instance or more than one instance. In this regard on behalf of the petitioner, law has been cited for showing that in similar circumstances bail could be granted and the law relating to grant of bail, either on the second bail application after rejection of the earlier one or on a bail application after rejection of several earlier, bail applications and of bail application after rejection of bail by the High Court. Law has also been cited to show that when delay is there in completion of the trial bail has been granted by various Courts of law. But, as discussed hereinabove, the charges against the petitioner are not because of simply granting bail tn some such circumstances but of following a design in grant of bail therein. Therefore, the aforesaid decisions cited on behalf of the petitioner do not help the Court in deciding the issue here.
20. With regard to constitution of misconduct in such acts, law referred to as decided in the cases of Union of India v. A. N. Saxena and Union of India v. K. K. Dhawan (supra) appears to be quite guiding. The relevant observation in the case of Union of India v. A. N. Saxena (supra) is as follows :
'8. In our view, an argument that no disciplinary action can be taken in regard to actions taken or purported to be done in the course of judicial or quasi-judicial proceeding is not correct. It is true that when an Officer is performing judicial or quasi-judicial functions, disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such proceedings, it is true. Is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his Independence. Hence the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. But it is not as if such action cannot be taken at all. Where the actions of such an officer indicate culpability, namely, a desire to oblige himself or unduly favour one of the parties or an Improper motive there is no reason why disciplinary action should not be taken.'
Relevant extract of decision in the case of K. K. Dhavan is as follows :
'28. Certainly, therefore, the officer who exercises judicial or quasi-Judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is Important to bear is mind thatin the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases :
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty ;
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty :
(iii) if he has acted in a manner which is unbecoming of a Government servant ;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers
(v) if he had acted in order to unduly favour a party ;
(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago 'though the bribe may be small, yet the fault is great'.
'29. The instances above catalogued are not exclusive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not failing under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated.'
21. Therefore, we find that the charges, if proved, do constitutemisconduct. With regard to their proof, we find that materials were there in the inquiry and conclusion has been reached on such materials resulting in the final order and there is no material to show that in reaching such conclusion, there was any perversity. In such factual background, the writ court cannot substitute its decision in place of decision by the disciplinary authority. Arguments advanced relying on evidence cannot be considered here, as reassessment of evidence is not to be done by the writ court when considering a disciplinary proceeding.
22. The facts available on record which were relied on by the disciplinary authority cannot be thrown away as Irrelevant. It is not a case of no evidence. Giving anxious consideration to the contentions of the learned counsel for the petitioner and looking into the materials on record, we are unable to hold that Inquiry report is vitiated as based on non-existent facts or surmises and conjectures.
23. The contention of the petitioner regarding discrimination has no basis as facts involved in different proceedings against other officers are different and, therefore, orders passed in such other proceedings cannot be compared for concluding discrimination.
24. The contention thatrecommendation of theAdministrative Committee was notaccepted is also having no basis asthe appropriate authority is FullCourt and the recommendation of theAdministrative Committee has nobinding effect. The Full Courtadmittedly is entitled to decideappropriate final order on the basisof the materials available in inquiryand to make recommendation to theGovernor. High Court is not bound tofollow the recommendation made bythe Administrative Committee.
25. With regard to non-supply of documents, no specific case has been made out relying on instances as regards documents, their relevance and non-supply thereof and, therefore, this contention has no force.
26. In view of our aforesaid findings, the writ petition is dismissed. There will be no order as to costs.