| SooperKanoon Citation | sooperkanoon.com/890987 |
| Subject | Service;Civil |
| Court | Himachal Pradesh High Court |
| Decided On | Jan-09-2009 |
| Judge | R.B. Misra and; Dev Darshan Sud, JJ. |
| Appellant | High Court of Himachal Pradesh |
| Respondent | Shri Manoj Kumar Bansal and ors. |
| Cases Referred | Kiran Aggarwal v. The Chief Secretary |
Dev Darshan Sud, J.
1. This Letters Patent Appeal has been preferred by the High Court of Himachal Pradesh against the judgment of the Hon'ble Single Judge setting aside the order of compulsory retirement passed against respondent No. 1 by the disciplinary authority.
2. The undisputed facts are that respondent No. 1, a member of Himachal Pradesh Judicial Service, was served with a Memorandum of Charge dated 1.10.1997 charging him on twelve counts of misconduct. After enquiry, he was held guilty of the charges detailed below:
Article of Charges
Findings of the Inquiry Officer
Article-I
That the said Shri Manoj Kumar Bansal while functioning as Sub Judge-cum-Sub Divisional Judicial Magistrate,Sarkaghat during the period from 22.1.1996 to 7.6.1997 had procured the presence of Shri Bhalkhu Ram, Operator ofAuto Rikshaw No. HP-05-0209 through the policeofficials of the Police Station, Sarkaghat on 23.7.1996 in his chamberand engaged under pressure his Auto Rikshawfor carrying his wife daily from residence to Government degree college,Bachowar, where she was posted as Lecturerand take her back in the evening. The operator was told that Rs.300/- P.M. shallbe paid to him by the said Shri Manoj KumarBansal and Rs.200/- per month shall be paid by the police. When the saidAuto Rikshaw operator got only Rs.600/- for two months, he refused to make available the said Auto Rikshawfor the wife of said Shri Manoj Kumar Bansal after 31st October, 1996.
On 1.1.1997 when the said Shri Manoj Kumar Bansal was on a walk, he came across the said Auto Rikshaw.He stopped the same and enquired from its operator Bhalkhu Ram as to whyhe was not making available his Rikshaw for Mrs.Bansal. On being told by the said Shri Bhalkhu Ram that the arrangementdid not suithim, the said Shri Manoj Kumar Bansal, threatenedhim saying that his Auto Rikshaw shall bechallaned and he will be fined. The said Shri Bhalkhu Ram told Mr. Bansalthat the documents of his Auto Rikshawwere in order. Ultimately, said Auto Rikshawwas challaned without the knowledgeof its operator and he was fined Rs.500/- on 5.2.1997 in the Court of said Shri Manoj Kumar Bansal without hearinghim.
Thus, the said Shri Manoj Kumar Bansal has abused his judicial powers and also acted in a manner becoming of a JudicialOfficer.
51.Article-I proved partly to the extent that the delinquenttook help of police officials Lal Chand, ASI and MHC Karam Chand, Police StationSarkaghat, for engaging three wheeler of PW-1 Shri Bhalkhu for carriage to andfro to Govt. College, Bachowar of his wife Smt. Chandrika Bansal, working as alecturer. Payment agreed was Rs.300/- per month and for engagement of three wheelerfor 2 months, fare was paid by Smt. Chandrika Bansal and thereafter it was disengagedwhen found irregular.
52.Shri Bhalkhu Ram was challaned by the police forrash driving and not stopping the vehicle on police signal on which challan wasfined Rs.500/- by the delinquent on 5-2-97. Fine was disproportionate to the offence,but Bhalkhu after pleading guilty paid the same and subsequently, handed overcomplaint to Shri D.P. Sharma, Advocate, for onward submission to the Hon'bleHigh Court, but there is nothing that the delinquent procured the challan by directing the police.
53.The charge is partly established.
Article-IV
That during the aforesaidperiod and while functioning in the aforesaid office, the said Shri ManojKumar Bansal has been deploying Shri SurinderKumar Process Server and Smt. Sheela Devi, Safai Karamchari at his residencefor menial duties, such as washing utensils,floors, clothes etc. He had also compelled the said Shri Surinder Kumar, PS. to accompany him to his native place at Rampur in July, 1996, November,1996 and March, 1997 under threat and had also been taking menial workfrom him even at his native place. Under threatand pressure the said official was being forced to apply for leave for such trips. He also subjected said Surinder Kumarand other class IV officials to gross-misbehaviour.
Thus, the said Shri Manoj Kumar Bansal has been utilizing the services ofofficials for his personal work and harassingthem unnecessarily by misusing his official position and power, which tantamounts to gross misconduct. Suchan act on his part is also highly unbecoming of a Judicial Officer.
75. 'It stands proved that Shri Surender Kumar, ProcessServer, used to work in the house of delinquent and sometime after 5 p.m. hadbeen going for service of local summonses, but his taking to Rampur thrice inJuly, November, 1996 and then in March, 1997 is not proved. Using services ofSheela Kumari Safai Karamchari for household work also not proved.'
Article-V.
That during the aforesaidperiod and while functioning in the aforesaid office, the said Shri ManojKumar Bansal has committed financial irregularityby making 7876 telephonic calls during the period between 16.1.1996 to15.1.1997 from his residential telephone andcharging the entire bill to the Govt. exchequer against the permissiblelimits of 5000 calls.
Thus, the said Shri Manoj Kumar Bansal has wrongfullycharged the bill of the excessive calls tothe government exchequer with a view to having personal gain to that extent.
Thus, the said Shri Manoj Kumar Bansal has committed grave financial irregularitiesand thereby mis-conducted himself.
77.This charge is borne out by the documents. TelephoneNo.52419 was installed in the residence of delinquent. Vide circular dated 16.12.95 copy of which isEx.PW16/A, the Hon'ble High Court had prescribedfree calls limit of 5000 per annum toSub Judge-cum-Judicial Magistrate Ist Class. Ex.PW16/B to Ex.PW-16/C are copies of telephone bills ofthis telephone for the aforesaid period of16.1.1996 to 15.1.1997. All these bills were paid from the office contingency funds. Consequently, 2876 callswhich were in excess of free calls of 5000 were paid by the delinquent from the contingency funds. Defence of thedelinquent was that he was never apprisedby the office that had exceeded the quota of 5000 calls and in absence of intimation callswere paid from office funds. Also it was asserted that the delinquent joined atSarkaghat on 22.1.96 and cannot be made to account for calls between 16.1.1996to 21.1.1996 during which period official residence was locked. No person fromunoccupied residence could have used the phone. Resultantly, it stands provedthat excessive calls of 2876 were paid by the delinquent from Govt. funds andindulged in financial irregularity.
78. Charge established.
Article-VI.
That during the aforesaidperiod and while functioning in the aforesaid office, the said Shri ManojKumar Bansal had erroneously dismissed CMA 174-II of 1995 on 7.3.1996, which wasfiled on the ground that an application forstay of execution under order 21 rule 29 CPC was pending and that if thestay as sought in the CMA was not granted, the purpose of the application filed under order 9 rule 13 CPC shallbe defeated. The said Shri Bansal without goingthrough the relevant record had dismissed the CMA observing in his orderdated 7.3.1996 that the relevant applicationhad already been dismissed. In fact that was not dismissed but issues were framed therein by him on 28.2.1996, i.e. a week earlier.
Thus, the said Shri Manoj Kumar Bansal has been deciding the judicial matters in a slip shod mannerwithout consulting the relevant records and, as such, he is guilty of gross negligence in the dischargeof his duties.
80.In support of the charge PW-16 Surender Kumar, officeSuperintendent was examined who produced record of CMA 174-VI/95 titled Ram LalVs. Rattan Chand. This application was dismissed by the delinquent on 7.3.96 videorder copy of which is Ex.PW16/I. Shri D.P. Sharma was the counsel for the applicantwho had moved application for stay of the execution petition on ground that petitionunder order 9 rule 13 CPC was filed by him for setting aside the exparte decree.That application was dismissed on ground that application under order 9 rule 13 CPC was dismissed by the court and there was no reasonto stay the proceedings. On 7.3.1996 that application under order 9 rule 13 CPC was pending as on 28.2.1996issues were framed and case was adjournedto 14.5.1996 for evidence of the applicant, as is evident from order dated 28.2.1996copy of which is Ex.PW16/H. Resultantly,it stands established that judicialorder was passed in haste without consulting the record or calling the officereport.
81. Charge established.
Article-VII.
That during the aforesaid period and while functioningin the office, the said Shri Manoj Kumar Bansal had refused bail to the accusedon 13.2.1997 in case titled State v. Prem Singh under sections 376, 354, 506IPC moved through Shri K.C. Verma Advocate. However, another application which was moved jointlyby Shri K.C. Verma and Shri R.S. Parmar, Advocates, in the same case two dayslater, the said Shri Manoj Kumar Bansal granted the bail on 15.2.97, althoughhe had no jurisdiction to grant bail in the case. The bail so granted was latercancelled by the Sessions Judge, Mandi and further application for bail filedbefore the Hon'ble High Court was also dismissed.
Thus, the said Shri Manoj Kumar Bansal had decidedthe application without jurisdiction in order to favour Shri R.S. Parmar, Advocate,and thereby committed grave judicial impropriety and thereby acted in a mannerhighly unbecoming of a Judicial Officer.
84.Prima-facie the delinquent had no jurisdiction togrant bail in rape case. The bail order on that ground was subsequently rejectedby the learned Sessions Judge, Mandi. Hence, charge stands proved.
85. Charge established.
Article-IX.
That during the aforesaid period and while functioningin the aforesaid office, the said Shri Manoj Kumar Bansal imprisoned one ShriManoj Kumar, under section 34 of Police Act, 1861 for 5 days. The defence counselsought the benefit of set-off under section 428 Cr.P.C. as the accused had alreadyremained in judicial custody for 14 days in this very case, but the requestwas turned down injudiciously and illegally.
Thus, the said Shri Manoj Kumar Bansal has committedgrave judicial impropriety and thereby actedin a manner highly unbecoming of a Judicial Officer.
92. Plea of the delinquent that provisions of Section428 Cr.P.C. were not applicable to Special Act, is not sustainable, because thisbasic provision was applicable to all the criminal proceedings. Accused ManojKumar was entitled for set off. But it has come in narration of Surender Kumar, PW-16 that sentence of Manoj Kumar was suspended on 8.8.1996.Resultantly, no legal prejudice was causedto Manoj Kumar convict, but the delinquentacted illegally by not granting setoff under Section 428 Cr.P.C. Hence charge proved.
93. Charge established.
3. The report of the Inquiry Officer was placed before the Full Court which was accepted rejecting the explanation given by respondent No. 1 herein. The petitioner was awarded the penalty of compulsory retirement from service vide Annexure P-1 with the writ petition.
4. This order was challenged by respondent No. 1 in writ proceedings under Article 226 of the Constitution of India in writ petition CWP 943 of 2000 which was allowed by the learned Single Judge of this Court on 22nd November, 2004. The High Court is now in appeal.
5. The primary objection of the High Court as appellant is that:
(i) That the learned Single Judge has exceeded his jurisdiction in reassessing the entire evidence considered by the Inquiry Officer who alone was competent to decide on facts and in proceedings under Article 226 of the Constitution of India, this Court has no jurisdiction to re-appreciate the evidence.
(ii) That the conclusion arrived at by the learned Single Judge is a result of re-appreciation of entire evidence and substitution of his conclusions on the evidence on record acting as an appellate authority which is against law.
(iii) On the quantum of punishment, it is the sole discretion of the disciplinary authority and this Court has no jurisdiction to enter into that aspect. It is in the background of these submissions made by learned Counsel for the parties that this appeal is being considered.
6. The propositions as urged for acceptance as being the settled law cannot be accepted in the broad and general terms as urged by learned Counsel appearing for the appellants. The power of judicial review is by now clearly defined and cannot be subjected to the limitation under the rubric 're-appreciation of evidence' 'acting as an appellate authority etc'. This Court cannot abdicate its Constitutional duties and powers under Article 226 of the Constitution of India and refuse to grant the rights and enlarge restriction as envisaged under Part III or the other provisions of the Constitution. Surely, if the findings are perverse or of such a nature which no reasonable person can arrive at, this Court would be within its jurisdiction to reassess and reappreciate the evidence on record and then to grant appropriate relief in accordance with law. This Court cannot be a mute spectator to violation of constitutional rights and liberties guaranteed to citizens/ individuals.
7. We have heard the learned Counsel for the parties and have gone through the record.
8. The judgments dealing with the ambit and power of judicial review of this Court may be noticed. Learned Counsel for the appellant places reliance on judgment of the Supreme Court in B.C. Chaturvedi v. Union of India and Ors. : (1996)ILLJ1231SC and submits that the High Court cannot act as an appellate authority. In particular, he emphasis that the powers of the High Court are confined for considering jurisdictional errors, perversity and not reconsideration of the entire evidence. In the case relied upon, the Court holds:
(12) Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
(13) The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel : (1964)ILLJ38SC , this Court held that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
(14) In Union of India v. S.L. Abbas : (1993)IILLJ626SC , when the order of transfer was interfered with by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not in such circumstances, interfere with orders of transfer of a Government servant. In Administrator of Dadra and Nagar Haveli v. H.P. Vora : AIR1992SC2303 , it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant. Recently, in State Bank of India v. Samarendra Kishore Endow : (1994)ILLJ872SC , a Bench of this Court of which two of us (B. P. Jeevan Reddy and B. L. Hansaria, JJ) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary / appellate authority.
9. He also submits that this very principle has been reiterated in Govt. of A.P. and Ors. v. Mohd. Nasrullah Khan : (2006)ILLJ1108SC , wherein it was held:
(11) By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority.
10. He urges that judicial review is not against the decision, but it is the decision making process which is under scrutiny. In particular, he places reliance on the decision in Bank of India and Ors. v. T. Jogram : AIR2007SC2793 , holding:
15. By now it is well-settled principle of law that judicial review is not against the decision. It is against the decision making process. In the instant case, there are no allegations of procedural irregularities/illegality and also there is no allegation of violation of principles of natural justice. Counsel for the respondent tried to sustain the allegation of malafide. He tried to assert that the respondent filed a case against the Chief Manager of Secunderabad Branch in 1996 and the enquiry initiated against the respondent is the fallout of malafide. We are unable to accept the bald allegations. The allegation of malafide was not substantiated. It is well settled law that the allegation of malafide cannot be based on surmises and conjectures. It should be based on factual matrix. Counsel also tried to assert the violation of principles of natural justice on the ground that the documents required by the respondent were not supplied to him. From the averment it is seen that the documents, which were sought to be required by the respondent, were all those bills submitted by the respondent himself before the authority. In these circumstances, no prejudice whatsoever was caused to the respondent.
11. Dr. Balram Gupta, learned Senior Counsel, instructed by Shri C.N.Singh, Advocate, appearing for respondent No. 1, submits that the concept of judicial review has undergone fundamental change. He submits that it would be open to the Court to reconsider facts also, as the principles of judicial review as postulated by the Wednesbury case which was being consistently followed by the Supreme Court, has undergone a sea change. He relied upon the decision of the Supreme Court in State of U.P. v. Sheo Shanker Lal Srivastava and Ors. : (2006)IILLJ219SC , holding:
25. It is interesting to note that the Wednesbury principles may not now be held to be applicable in view of the development in constitutional law in this behalf. See for example, Huang v. Secy. of State for the Home Department (2005) 2 All ER 435, wherein referring to R. v. Secretary of state of the Home Department, Ex. P Daly (2001) 3 All ER 433, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merit judgment, which is yet more than Ex p. Daly requires on a judicial review where the court has to decide a proportionality issue.
12. He also urges that in the present case, there is no appeal and this Court can go into question of fact. He relies upon the decision in Indian Airlines Ltd. v. Prabha D. Kanan : (2007)IILLJ113SC holding:
44. But, in a case of this nature although there is no provision for appeal, but even in a judicial review, the court may require the employer to produce the records, on a perusal whereof the court may come to a finding as to whether the order passed by the Board of Directors was bona fide or not.
45. A judicial review of such an order would be maintainable. In a case of judicial review, where no appeal is provided for, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not confine its jurisdiction only to the known tests laid down therefor, viz. , illegality, irrationality, procedural impropriety. It has to delve deeper into the matter, it would require a deeper scrutiny.
46. We may notice that keeping in view the situational changes and, particularly, outsourcing of the sovereign activities by the state, this Court has been expanding the scope of judicial review. It includes the misdirection in law, posing a wrong question or irrelevant question and failure to consider relevant question. On certain grounds judicial review on facts is also maintainable. Doctrine of unreasonableness has now given way to doctrine of proportionality.
47. In S. N. Chandrashekar v. State of Karnataka : AIR2006SC1204 , this Court observed:
33. It is now well known that the concept of error of law includes the giving of reasons that are bad in law or (where there is a duty to give reason) inconsistent, unintelligible or substantially inadequate. (See de Smith's Judicial Review of Administrative Action, 5th Edn., p. 286.)
34. The Authority, therefore, posed unto itself a wrong question. What, therefore, was necessary to be considered by BDA was whether the ingredients contained in Section 14-A of the Act were fulfilled and whether the requirements of the proviso appended thereto are satisfied. If the same had not been satisfied, the requirements of the law must be held to have not been satisfied. If there had been no proper application of mind as regards the requirements of law, the State and the Planning Authority must be held to have misdirected themselves in law which would vitiate the impugned judgment.
35. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chennai : AIR2005SC3520 , this Court referring to Cholan Roadways Ltd. v. G. Thirugnanasambandam held:
14. Even a judicial review on facts in certain situations may be available. In Cholan Roadways Ltd. v. G. Thirugnanasambandam this Court observed:
'34. . . . . It is now well settled that a quasi-judicial authority must pose unto itself a correct question so as to arrive at a correct finding of fact. A wrong question posed leads to a wrong answer. In this case, furthermore, the misdirection in law committed by the Industrial Tribunal was apparent insofar as it did not apply the principle of res ipsa loquitur which was relevant for the purpose of this case and, thus, failed to take into consideration a relevant factor and furthermore took into consideration an irrelevant fact not germane for determining the issue, namely, that the passengers of the bus were mandatorily required to be examined. The Industrial Tribunal further failed to apply the correct standard of proof in relation to a domestic enquiry, which is 'preponderance of probability' and applied the standard of proof required for a criminal trial. A case for judicial review was, thus, clearly made out.
35. Errors of fact can also be a subject-matter of judicial review. (See E. v. Secy. of State for the Home Deptt. (2004) 2 WLR 1351 (CA)) Reference in this connection may also be made to an interesting article by Paul P. Craig, Q. C. titled 'judicial review, Appeal and Factual Error' published in 2004 Public Law, p. 788.
48. Yet again in State of U.P. v. Sheo Shanker Lal Srivastava : (2006)IILLJ219SC this Court observed:24. While saying so, we are not oblivious of the fact that the doctrine of unreasonableness is giving way to the doctrine of proportionality. 25. It is interesting to note that the Wednesbury principles may not now be held to be applicable in view of the development in constitutional law in this behalf. See, for example, Huang v. Secy, of State for the Home Deptt. (2005) 3 All ER 435 wherein referring to R. v. Secy, of State of the Home Deptt. ex p Daly (2001) 3 All ER 433 (HL), it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merit judgment, which is yet more than ex p. Daly requires on a judicial review where the court has to decide a proportionality issue.
12. Judicial precedents on the point need not be multiplied. The submission made on behalf of the appellant that judicial review has to be confined only to the principles as enunciated in Wednesbury's case cannot be accepted, as the Supreme Court itself holds in Sheo Shankar Lal's case (supra) that these principles are not followed any more.
13. Findings based on no evidence or ignoring evidence even though the principles of law of evidence are not applicable in departmental proceedings, misinterpretation of important documents forming the fundamental basis of the charge against the delinquent and conclusions based on the material on record not supporting the finding etc. would all be errors amongst other such errors within the ambit of judicial review. We need not reiterate that the Court cannot be a silent spectator to miscarriage of justice or denial of fundamental rights. It is in this background of the law that the factual matrix has to be considered.
14. The learned Single Judge while dealing with each of the charges has referred to the evidence and the findings of the Inquiry Officer on each of the charges. On the first charge, that is obtaining assistance of the police officials etc. for hiring three wheeler belonging to one Bhalku Ram which three wheeler was to be used by the wife of respondent No. 1, fixing its fare etc., the charge is only partly proved as held by the Inquiry Officer and extracted by us in the tabulated form above. In other words, charge is proved only to the limited extent as held by the Inquiry Officer. We concur with the findings of the Inquiry Officer on this charge. The learned Single Judge holds that this charge i.e. taking help of officials also is not proved cannot be accepted. Surely, if the Inquiry Officer on the evidence on record was satisfied that the help of the police official was taken, reappreciation of the evidence was not permissible to come to a different conclusion unless it was perverse. While considering this charge in its various components, the Inquiry Officer holds that only one aspect is proved and the other elements are not established from the evidence/ material on record.
15. Article of Charge IV consists of an imputation that the services of Surinder Kumar, Process Server and Smt. Sheela Devi, Safai Karamchari were utilized by respondent No. 1 at his residence for menial duties for washing clothes, utensils, cleaning floors etc. The charge also states that the aforesaid Shri Surinder Kumar was forced by respondent No. 1 to accompanying him to Rampur etc. on various occasions as detailed therein and he had also been utilizing his services for taking menial work at Rampur. The charge then proceeds that this official was threatened and pressurized to apply for official leave for these trips. The Inquiry Officer holds:
It stands proved that Shri Surender Kumar, Process Server, used to work in the house of delinquent and sometime after 5 p.m. had been going for service of local summonses, but his taking to Rampur thrice in July, November, 1996 and then in March, 1997 is not proved. Using services of Sheela Kumari Safai Karamchari for household work also not proved.
16. The learned Single Judge holds that this is not a charge of a grave nature to have been made the basis of imposing the punishment. We cannot agree with this finding. The fact having been established, it was for the disciplinary authority to have considered as to whether these acts constitute misconduct or not.
17. On charge No. V, we find that prima facie reading of the document on which reliance is placed to show that a presiding officer is entitled to only a particular amount of STD calls, the learned Single Judge is right that the Circular does not support the conclusion arrived at by the Inquiry Officer. A plain reading of the letter which was addressed by the Registrar to all Judicial Officers states that the STD facility at the residence of the Judicial Officers shall be subject to the limits as provided therein. We do not find anything on the record to hold or justify that there was any material on record to establish that the STD limit had infact been exceeded. The circular reproduced in the writ petition forming the basis of this charge may be noticed. It states:
From
The Registrar,
High Court of Himachal Pradesh,
Shimla-1.
To All the Judicial Officers in the State of Himachal Pradesh.
Subject:- Providing of telephone facility with STD to all the Judicial Officers in the State of Himachal Pradesh.
Sir,
I am directed to say that Hon'ble the Chief Justice and Hon'ble Judges of the High Court of Himachal Pradesh have been pleased to approve that telephone facility in the offices as well as residences be provided to all the Judicial Officers in the State with STD facility.
The STD facility at the residences of the Judicial Officers shall be subject to the following limits:
(a) District & Sessions Judges No limit. (b) Addl. District & Sessions Judges. 9000 calls per annum. (c) Senior Sub Judges-cum-ChiefJudicial Magistrates. 7500 calls per annum. (d) Other Judicial Officers 5000 calls per annum.The above limits of calls shall not apply to the telephones in the offices of the above Judicial Officers. The officers who are not provided with the facilities of telephones at their residences/offices may make suitable reference in this regard to the undersigned. Others will take follow up action within the scope of the approval of this Court.
Yours faithfully,
Sd/-
Registrar.
18. There was nothing on record to establish as to whether all calls were STD or local calls. The findings of the learned Single Judge cannot be faulted with on this count.
19. Three charges namely, VI, VII and IX are subject matters of orders having been passed by respondent No. 1 while discharging his duties as a Judicial Officer. The first charge, Article of Charge No. VI, states that an application under Order 9 Rule 13 of the Code of Civil Procedure was dismissed on 7.3.1996. The charge is that the delinquent had been deciding matters in a slip shod manner and is guilty of negligence of duty. The findings of the Inquiry Officer is that proper attention has not been paid by the respondent No. 1 in discharging his judicial functions. He had dismissed the application without verifying the facts. The learned Single Judge holds that it is Shri D.P.Sharma who seems to be aggrieved and not the litigant therein. This is a plausible explanation but we do not find anything from the record that Shri D.P.Sharma and respondent No. 1 are not on good terms.
20. Charge No. VII relates to the fact that earlier respondent No. 1 had declined to grant bail for offences under Section 376 of the Indian Penal Code on 13.2.1997, but on 15.2.1997, when another application was moved, he granted bail which was later on set aside by the learned Sessions Judge on 26.3.1997. The Inquiry Officer holds that the learned Judge assumed jurisdiction not vested in him by law and the charge was established. On charge No. IX, the allegation is that respondent No. 1 had sentenced one Manoj Kumar for five days under Section 34 of the Police Act though he had remained in custody for 14 days, but the prayer made for set off of 14 days during which the accused was in custody, was not considered. Respondent No. 1 had submitted that he had suspended sentence on that very day and thus, no charge was established.
21. The question as to whether a judicial officer has exercised his powers honestly or not requires deep consideration. It is well nigh true that a decision rendered by a judicial officer may be right or wrong, but it should not be motivated. On going through the findings of the Inquiry Officer on these three charges, we do not find that the orders are motivated, that is to say we cannot find anything on the record or evidence to hold that while rendering these three decisions, the officer was influenced by extraneous considerations in delivering those orders / judgments. If the order / judgment is wrong, the aggrieved party always has a right to challenge it in appellate/ revisional proceedings or preferring a review etc. Merely, because the order is wrong will not by itself constitute misconduct unless it can be covered within the parameters of P.C.Joshi's case considered infra. We may also add that if the order does not meet the exacting standards of a conscientious judicial officer, this may form a part of his Annual Confidential Report which may debar him from further service benefits including promotion etc. But it would not per se be a matter for inquiry. Of course, the situation would be different if the order / judgment has been obtained by corrupt motive/ influence etc. which is a serious matter.
22. On Article of Charge IX, the learned Single Judge holds that the evidence of PW-16 on the inquiry file shows that Manoj Kumar who had been sentenced by respondent No. 1 who availed the remedy of a revision which was dismissed. Surely, if this is the situation, how can it be said that the charge was proved? Having availed of a remedy available in law, where the convict could have raised all grounds possible, no blame can be laid on respondent No. 1. On the last three charges, we also find that the Inquiry Officer has gone awry. He makes reference to the comments of Shri S.S.Thakur, the then learned District & Sessions Judge, Mandi (now Hon'ble Judge of this Court) under whom respondent No. 1 was working and notes that he has spoken of a general good reputation of the delinquent. The Inquiry Officer then proceeds
this assessment was of controlling officer of the delinquent. His work as presiding officer might be satisfactory. There is no allegation that any complaint of any aggrieved person was made to the learned District & Sessions Judge, Mandi. Such evidence is of general nature which has no nexus with particular article of charge.' This observation to say the least is skewed. On the last three charges, the orders passed by respondent No. 1, would be under the scrutiny of his controlling officer who would be assessing his work and conduct. Why should then it be observed that this assessment made by the then learned District & Sessions Judge is of a general nature
23. We also refer to the decision of the Supreme Court in P.C. Joshi v. State of U.P. and Ors. : (2001)IILLJ1249SC , holding:
4.The disciplinary proceedings were initiated, inter alia, on complaints made by two Advocates, namely, v. K. Tiwari and Rajiv Kumar Singh. Nine charges were levelled aginst the appellant, seven of them pertain to orders of bail granted in 19 cases. During his tenure of two years at Etah, the appellant is stated to have disposed of over 3,000 bail applications. Only 19 bail orders out of these 3000 bail applications were the subject-matter of the charge-sheet. The Enquiry Officer, however, found that in 7 cases, orders of bail were properly granted and the charges were not proved to that extent. In four cases the charges are held to be partly proved. In one case, the appellant himself had recalled the order of bail after about 1 1/2 months of the grant of bail on an application made by the complainant on the ground that the bail was obtained by fraud and misrepresentation. In two other cases, according to the Enquiry Officer, bail ought to have been granted on the very first application, but it was granted on the second application. The Enquiry Officer took note of each one of the cases before him and re-examined whether bail should have been granted in each one of those cases or not. The parties concerned had not made any complaint in any one of the cases. On examination of each one of the charges in relation to grant of bail, the Enquiry Officer proceeded to consider the cases on merits. He found that there used to be a pattern in rejecting the first bail application and thereafter even in the absence of fresh ground, second bail application was entertained and bail had been granted or in certain other cases even in the first instance itself the bail ought to have been granted. Although we have been taken through the various charges levelled against the appellant in detail and the meterial placed before the Enquiry Officer, it is clear that inferences have been drawn only on the basis that either the applications had been rejected at earlier stage for grant of bail or such applications ought to have been granted at the first stage itself. However, no specific material was brought on record to show or prove that there were any mala fide or extraneous reasons on the part of the appellant in passing the orders.
5. The test to be adopted in such case is as stated by this Court in the cases of Union of India v. A.N. Saxena : (1993)IILLJ747SC and Union of India v. K.K. Dhawan : (1993)ILLJ777SC . In K.K. Dhawan's case (supra), this Court indicated the basis upon which a disciplinary action can be intiated in respect of a judicial or a quasi judicial action as follows:
(i) where the judicial officer has conducted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty;
(ii) that there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) that if he has acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(iv) that if he had acted in order to unduly favour a party;
(v) that if he had been actuated by corrupt motive.
6. Dealing with a matter of similar nature in Ishwar Chand Jain v. High Court of Punjab and Haryana 1988 Supp (1) SCR 396, the following observations were made by this Court:.While exercising control over the subordinate judiciary under the Constitution, the High Court is under a constitutional obligation to guide and protect judicial officers. An honest, strict judicial officer is likely to have adversaries. If complaints are entertained on trifling matters relating to judicial officers which may have been upheld by the High Court on the judicial side, and if the judicial officers are under constant threat of complaints and enquiry on trifling matters, and if the High Court encourages anonymous complaints, no judicial officer would feel secure, and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for the Rule of law. It is imperative that the High Court should take steps to protect its honest judicial officers by ignoriong ill- conceived or motivated complaints made by unscrupulous' lawyers and litigants.7. In the present case, though elaborate enquiry has been conducted by the Enquiry Officer, there is hardly any material worth the name forthcoming except to scrutinise each one of the orders made by the appellant on the judicial side to arrive at a different conclusion. That there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and too for alleged misconduct for that reason alone. The Enquiry Officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate Court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently of fearlessly. Indeed the words of caution are given in K. K. Dhawan's case : (1993)ILLJ777SC and A. N. Saxena's case : (1993)IILLJ747SC , (supra) that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the appellant in this case.
24. We may also notice one more submission which has been made on behalf of the respondent. It was urged as noticed by the learned Single Judge, that prejudice has been caused to respondent No. 1 as the inquiry report was received on 29.5.1999, it was sent to respondent No. 1 for his comments only on 19.6.2000, i.e. after a period of one year. Before calling for his representation on the findings of the inquiry report, the matter was referred to a Administrative Committee of the Court which consisted of three Hon'ble Judges. They, vide their separate opinions, had suggested taking action against the respondent. On receipt of the report, the Full Court issued show cause notice Annexure P-6 with the writ petition which was replied to and thereafter the punishment of compulsory retirement was imposed upon the respondent under Rule 11(vii) of the Central Civil Services (CCA) Rules, 1965. The learned Judge holds that by referring the matter to the Administrative Committee and accepting its opinion, there has been a violation of the rights of the respondent as before making up its mind to issue show cause notice of imposition of penalty, the disciplinary authority had the opinion of the committee so appointed. Learned Counsel submits that grave prejudice has been caused to the respondent and the entire proceedings deserve to be quashed on that ground alone as was rightly observed by the learned Single Judge. We cannot accept this submission in the generality in which it has been couched. Learned Senior Counsel for the respondent submits that this was not merely a matter of procedure, but a substantive right conferred by the Constitution which was negated by this action. The proper method should have been that the inquiry report should have been sent to the respondent before any decision was taken either to issue show cause notice or to accept or reject his explanation.
25. In Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. : (1994)ILLJ162SC , the Supreme Court has held that every violation of the principles of natural justice would negate the order passed. What is to be seen is the nature of prejudice which has been caused and then to relegate the parties to the stage where the infringement is complained of so that a fair chance is given to the delinquent to explain his conduct and then consequential action is taken. The ratio of this case has been applied by the Supreme Court in subsequent cases. The Supreme Court in Karunakar's case held:
26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it.
27. It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employee's right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceedings.
29. Hence it has to be held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.
26. At the same time, the Court laid down that mere non receipt of the report will not vitiate the inquiry. It held:.[v] The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an 'unnatural expansion of natural justice' which in itself is antithetical to justice.
31. Hence in all cases where the enquiry officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.
27. It would thus be apparent that what has to be seen is the prejudice caused to the delinquent. It has been urged that in terms of determination of his guilt or quantum of punishment, the respondent has been severely handicapped because there was no reasonable opportunity afforded to him to put forth his case as the report was being processed at various levels to ascertain as to what course of action was to be taken. We have noted in the previous part of the judgment that two charges stand partly proved against respondent No. 1 and we concur with the findings of the inquiry officer on these charges. On the other charges, we concur with the learned Single Judge, though for different reasons, that the charges are not proved. On the charge of misusing of telephone, all that need be said is that the circular relied upon is capable of being interpreted as referring to only STD calls. On the question of passing orders on the judicial side, we may say that we do not find anything on record to show that there was any motive on the part of the judicial officer to have passed these orders. The orders may be wrong, but they are not motivated. We have not been shown anything from the inquiry report to establish corrupt motive etc. Disgruntled advocates at the bar need to be discouraged from making complaints against judicial officers when they find orders passed inconvenient to the cause they plead. If the officer is not capable of holding the judicial assignment requiring specialized degree of skill, if his orders disclose a lack of judicial skill, that is not a matter for disciplinary proceedings, but something for consideration by the Court as to whether some entry requires to be made on his Annual Confidential Report or withholding of service benefits or issuance of a caution for improvement. Two charges have been held to be partly proved and we do not concur with the learned Single Judge that there is no evidence to establish these charges.
28. On the quantum of punishment, all that we need say is that the judgment of this Court in Kiran Aggarwal v. The Chief Secretary to the Government of Himachal Pradesh and Ors. 2002(1) SLR 176 clearly lays down that it is the disciplinary authority who will determine the quantum of punishment to be imposed on the delinquent.
29. In the circumstances, we partly allow this appeal and hold that the judgment of the learned Single Judge when it exonerates respondent No. 1 of all wrong doing cannot be sustained. We hold that two charges as discussed by us above are partly proved. In the facts and circumstances of the case and in view of what we have held above, the judgment of the learned Single Judge is modified to the extent indicated by us. It will be open to the Disciplinary Authority to reconsider the matter including quantum of punishment. All pending applications shall stand disposed of and interim orders vacated.