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Mahesh Puri v. High Court Of Judicature At Alld. Thru' Registrar & Ors. - WRIT - A No. 27049 of 2002  RD-AH 140 (9 May 2003)
COURT NO. 34
CIVIL MISC. WRIT PETITION NO 27049 Of 2002
Mahesh Puri ----- Petitioner
High Court of Judicature at Allahabad,
Through its Registrar General ----- Respondent
Hon'ble Ghanshyam Dass, J.
(Delivered by Hon'ble Dr. B.S.Chauhan, J.)
This writ petition has been filed for quashing the order dated 30.11.1999 (Annex.-5) by which the punishment of withholding two annual grade increments with cumulative effect has been imposed upon the petitioner and further the arrears of salary during the period of suspension other than subsistence allowance has been withheld.
Facts and circumstances giving rise to this case are that petitioner entered into the judicial service of Uttar Pradesh in 1976. He was promoted as a Civil Judge (Senior Division) in 1985. In 1995 certain complaints against him for granting the bail in certain cases on extraneous considerations were received by this Court and vide resolution dated 16.10.1995 of the Administrative Committee this Court a preliminary enquiry was instituted against the petitioner and he was put under suspension vide order dated 18.10.1995. In pursuance thereof a report of the preliminary enquiry was submitted on 20.8.1996 which was considered by the Administrative Committee of the Court on 27.9.1996 and it resolved to hold a regular disciplinary enquiry against him. He was issued charge sheet dated 7.2.1997 containing 11 charges including corruption also. Petitioner denied the charges being motivated and ill founded. However after completing the enquiry, the report was submitted by the Enquiry Officer on 2.2.1999. The said report was considered by the Administrative Committee and it was placed before the Full Court which vide resolution dated 20.11.1999 passed the proposed punishment of withholding two annual grade increments with cumulative effect with certain other consequences. A show cause notice was issued to the petitioner furnishing the copy of Enquiry Report. He submitted his reply and after considering the same the impugned punishment order dated 30.11.1999 was passed. Subsequently, as required under the provisions of Section 54-B of the Fundamental Rules a notice dated 17.12.1999 (Annex.-6) had been served upon him regarding withholding the arrears of salary which had not been paid to him during the suspension period. He submitted his reply on 15.2.2000 and after considering the same, this Court withheld the same vide order dated 13.4.2000. Hence this petition.
Mr. Arvind Srivastava, learned counsel for the petitioner has vehemently submitted that out of 11 charges, charge no. 1 was partly proved; charges no. 3, 4 and 7 have been proved against the petitioner in toto. All the four charges which stood proved were in respect of granting bail in the offences punishable under Sections 307/326 and 364 I.P.C., and though the orders may be without jurisdiction but as the Enquiry Officer has held that the same were not passed for any extraneous consideration and they may be cases of judicial error, and no punishment can be imposed. More so, the judicial error can be rectified/corrected in the appeal and revision. Therefore, the order of punishment is liable to be quashed in toto.
On the other hand, Shri Agrawal, learned Standing Counsel has seriously disputed the submissions made by Mr. Srivastava contending that the Enquiry Officer had found that petitioner exercised the jurisdiction knowingly and passed the bail orders during a short span of period of six months and even if the same had been passed for no extraneous consideration the negligence has been of such a grave nature that it falls within the ambit of misconduct and petitioner cannot escape the liability.
We have considered the rival submissions made by the learned counsel for the parties and perused the record.
Mr. Srivastava has not raised any issue regarding the procedure in which the enquiry has been conducted nor he has assailed the findings of facts recorded by the Enquiry Officer. His submissions remained two-fold that it was merely an judicial error and thus could not be a misconduct and secondly arrears of salary etc. had been withheld under Section 54-B of the Fundamental Rules without adopting the procedure, i.e., without issuing notice and giving opportunity of hearing to the petitioner.
The issue as to whether where a judicial order can be corrected in appeal or revision, the disciplinary proceeding can be initiated against a judicial officer for passing the wrong order; and whether recklessness and gross negligence on the part of a judicial officer, even if he had no corrupt motive, fall within the ambit of misconduct are no more res integra.
The Supreme Court, in S. Govinda Menon Vs. Union of India, AIR 1967 SC 1274, has held as under:-
" ..... It is not necessary that a member of the service should have committed the alleged act or omission in the course of discharge of his duty as a servant of the Government in order that it may form the subject matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission.... The test is whether the act or omission has some reasonable occasion with nature and condition of his service or where the act or omission has caused any reflection upon the reputation of the member of the service for integrity or devotion of duty as a public servant.... The proposition put forward was that quasi-judicial orders, unless vacated under the provisions of the Act, are final and binding and cannot be questioned by the executive government through disciplinary proceedings..... The charge is, therefore, one of misconduct and recklessness disclosed by the utter disregard of the relevant provisions....... But in the present proceedings what is sought to be challenged is not the correctness or the legality of the decision of the Commissioner but the conduct of the appellant in the discharge of his duty as Commissioner. The appellant was proceeded against because in the discharge of his function, he acted in utter disregard of the provisions of the Act and the Rules. It is the manner in which he discharges his function that brought up in these proceedings..... It is manifest, therefore, that though the propriety and legality of the sanction to the leases may be question in appeal or revision under the Act the Government is not precluded from taking disciplinary act if there is proof that the has acted in gross recklessness in the discharge of his duties or that he failed to act honestly or in good faith or that he omitted to observe the prescribed conditions which are essential for the exercise of the statutory power."
Thus, the aforesaid judgment is an authority that disciplinary proceedings can be initiated against an employee in respect of the action, even if it pertains to exercise of judicial or quasi-judicial powers.
While deciding the aforesaid judgment in S. Govinda Menon (supra), the Hon'ble Supreme Court had relied upon the judgment in Pearce Vs. Foster, (1966) 17 QBD 536, wherein it had been held as under:-
"If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal."
The Supreme Court, in Union of India &ors. Vs. K.K. Dhawan, AIR 1993 SC 1478, very heavily relied upon its earlier judgment in S. Govind Menon (supra) and observed that 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 and in the disciplinary proceedings it is the conduct of the officer in discharge of his official duties and not the correctness or legality of his decisions or judgments which are to be examined as the legality of the orders can be questioned on appellate or revisional forum. In such case the Government cannot be precluded from taking the disciplinary action for violation of the Conduct Rules. The Court summarised some circumstances in which disciplinary action can be taken, which are as under:-
"(i) Where the Officer had acted in a manner as would reflect on his reputation or integrity or good faith or devotion of 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."
The Court further observed that the said instances were not exhaustive. However, it was further observed by the Supreme Court that each case would depend upon the facts and circumstances of that case and no absolute rule can be postulated.
Undoubtedly, abuse of power has always been treated as constituting misconduct for the purpose of disciplinary proceedings. More so, in Management of Utkal Machinery Ltd. Vs. Workman Miss Shanti Patnaik, AIR 1966 SC 1051, the Hon'ble Apex Court held that gross negligence constitutes misconduct. In Union of India & ors. Vs. J. Ahmed, AIR 1979 SC 1022, the Hon'ble Supreme Court considered whether inefficiency in service amounts to misconduct or not, and the Hon'ble Court answered it in negative holding that the word "misconduct" itself indicates that if proved, it may incur the penalty under the Rules.
In Union of India Vs. Upendra Singh, (1994) 3 SCC 357, the Apex Court held that even an officer, while discharging judicial or quasi-judicial duties, is amenable to the disciplinary proceedings into his conduct in discharge of the duty.
In Union of India & ors. Vs. A.N. Saxena, AIR 1992 SC 1233, the Hon'ble Apex Court held that disciplinary action can be taken in regard to the action taken or purported to be taken in course of judicial or quasi-judicial proceedings. However, in such circumstances, the disciplinary proceedings should be initiated after great caution and a close scrutiny of his actions and only if the circumstances so warrant for the reason that initiation of disciplinary proceedings against a judicial officer may shake the confidence of the public in the officer concerned and if lightly taken, likely to undermine his independence and in case the action of judicial officer indicates culpability, there is no reason why disciplinary action should not be taken against him.
In State of Punjab & ors. Vs. Ram Singh Ex-Constable,(1992) 4 SCC 54, the Hon'ble Supreme Court considered various dictionaries to find out the meaning of "misconduct" and the same is worth quoting as under:-
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus: 'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its , synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.'
Misconduct in office has been defined: ''Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the offence holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act.'
P. Ramanatha Aiyar's Law Lexicon, Reprint Edition 1987 at page 821, defines 'misconduct' thus: 'The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskillful ness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law, carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected."
The Hon'ble Supreme Court further held that the word "misconduct" though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character.
In Government of Tamil Nadu Vs. K.N. Ramamurthy, AIR 1997 SC 3571, the Hon'ble Supreme Court held that exercise of judicial or quasijudicial power negligently having adverse affect on the party or the State certainly amounts to misconduct.
In M.H. Devendrappa Vs. Karnataka State Small Industries Development Corporation, AIR 1998 SC 1064, the Hon'ble Supreme Court has ruled that any action of an employee which is detrimental to the prestige of the institution or employment, would amount to misconduct.
In Union Bank of India Vs., Vishwa Mohan, (1998) 4 SCC 310, the Hon'ble Supreme Court held that misconduct includes not working with diligence by an employee.
In State Bank of India Vs. T.J. Paul, AIR 1999 SC 1994, the Supreme Court held that even in a case the allegations of mala fide and corrupt practice have neither been alleged nor revealed while issuing the charge sheet, the delinquent employee may be held guilty of misconduct in case the officer acts without restraints jeopardising the interest and rights of other party. The said case was for granting the bank loan negligently and the bank suffered serious loss. The Apex Court held that it may not be a case of insubordination or disobedience of specific order of any superior officer, if the act is prejudicial to the interest of the bank or gross negligence or negligence involved or likely to involve the bank in serious loss, would amount to misconduct. In other words, if negligence of an officer seriously affects and prejudices the rights of the party, it definitely amounts to misconduct.
In Government of Andhra Pradesh Vs. P. Posetty, (2000) 2 SCC 220, the Hon'ble Supreme Court held that sense of propriety and acting in derogation to the prestige of the institution and placing his official position under any kind of embarrassment may amount to misconduct as the same may ultimately lead that the delinquent had behaved in a manner which is unbecoming of an employee/ Government servant.
Thus in view of the above, we find no force in the submissions made by the learned counsel for the petitioner that if the judicial order can be corrected in an appeal or a revision, initiation of disciplinary proceeding is not warranted. As the Hon'ble Apex Court has consistently held that in exceptional circumstances even if such an order can be corrected by an appellate or revisional court, disciplinary proceeding can certainly be held against the judicial officer.
In a case like instant, the Court can review only the "decision making procedure" and not the "decision" of the authority. The Court, not being a Court of Appeal, is not competent to substitute its own view on factual aspects of the case.
In High Court of Judicature at Bombay through its Registrar Vs. Udaysingh & ors., A.I.R. 1997 SC 2286 the Hon'ble Apex Court while dealing with a case of judicial officer has held as under:-
"Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the creditability of the conduct, honesty, integrity and character of the officer and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that imposition of penalty of dismissal from service is well justified. It does not warrant interference."
This Court in Ram Chandra Shukla Vs. State of U.P., 2002 ALR 138 held that the case of judicial officers has to be examined in the light of a different standard that of other administrative officers. There is much requirement of credibility of the conduct and integrity of judicial officers.
In High Court of Judicature at Bombay V. Shirishkumar Rangrao Patil, AIR 1997 SC 2631 the Supreme Court observed as under:-
"The lymph nodes (cancerous cells) of corruption constantly keep creeping into the vital veins of the judiciary and the need to stem it out by judicial surgery lies on the judiciary itself by its self-imposed or corrective measures or disciplinary action under the doctrine of control enshrined in Articles 235, 124 (6) of the Constitution. It would, therefore, be necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self-introspection".
When such a constitutional function was exercised by the administrative side of the High Court any judicial review thereon should have been made not only with great care and circumspection, but confining strictly to the parameters set by this Court in the aforesaid decisions.--------"
In The High Court of Judicature at Bombay Vs. Shashikant S. Paril & Anr., AIR 2000 SC 22 the Hon'ble Supreme Court held as under:-
"--------- It is on administrative side, to keep guard over the subordinate judiciary functioning within its domain. While it is imperative for the High Court to protect honest judicial officers against all ill conceived or motivated complaints, the High Court cannot afford to bypass any dishonest performance of a member of the subordinate judiciary. Dishonesty is the stark antithesis of judicial probity. Any instance of a High Court condoning or compromising with a dishonest deed of one of its officers would only be contributing to erosion of the judicial foundation. Every hour we must remind ourselves that judiciary floats only over the confidence of the people in its probity. Such confidence is the foundation on which pillars of the judiciary are built.
The Judges, at whatever level may be, represent the State and its authority, unlike the bureaucracy or the members of the other service. Judicial service is not merely an employment nor the Judges merely employees. They exercise sovereign judicial power. They are holders of public offices of great trust and responsibility. If a judicial officer "tips the scales of justice its rippling effect would be disastrous and deleterious. Dishonest judicial personage is an oxymoron."
The first charge against the petitioner has been that on 24.1.1995 while acting as a Chief Judicial Magistrate he allowed bail of the accused in an offence under Sections 147/148/149/323/436/504/506/114 and 307 I.P.C. under Section 437 Cr.P.C., and on 10.5.1995 in the same offence he rejected the bail of the co-accused Akhilesh Yadav for not making the illegal gratification of Rs.10,000/- demanded by him. This charge stood proved to the extent that rejecting the bail of co-accused Akhilesh Yadav was discriminatory exercise of power under Section 437 Cr.P.C. Charge No. 3 had been that on 28.3.1995 he granted bail in a case under Section 147/148/149 and 307 I.P.C.. This charge proved fully against him.
Charge No. 4 had been that on 25.2.1995 he again granted the bail in a case under Section 326, 323 and 504 I.P.C. which was without jurisdiction. This charge also stood proved. Charge No. 7 had been that on 3.8.1994 he granted bail in an offence under Sections 498-A/324/323/307 I.P.C. It also proved fully against the petitioner.
Undoubtedly, in all the four charges which are proved against him bail had been granted without jurisdiction purported to exercising the power under Section 437 as the cases did not fall to the expectional circumstances mentioned thereind within a short span of period from 3rd August, 1994 to 10th May, 1995. The observations made and the findings recorded by the Enquiry Officer are also worth quoting:-
"The subsequent order rejecting bail of accused Akhilesh Yadav is thus discriminatory... There is no evidence of any witness about extraneous consideration....... The bail orders suffer from jurisdictional error and there is no other evidence regarding mala fide for accepting money..... While the bail was granted treating the case under Section 326 I.P.C., the bail order lacs jurisdictional error, as there is no mention in the order that the case was covered by the proviso to Section 437 Cr.P.C. ..... Charge Nos. 3, 4 and 7 are proved to the extent that Shri Mahesh Puri granted bail in cases under Sections 307, 326 and 364 I.P.C. fully knowing it to be without jurisdiction under Section 437 Cr.P.C....."
The conclusion of the Enquiry Officer reads as under:-
"In this way, the 3rd part of charge no. 1 is proved to the extent that the bail of the accused Akhilesh Yadav was rejected in complete ignorance of law of parity. The first part of charge nos. 3, 4 and 7 is proved to the extent that Shri Mahesh Puri granted bail in cases under Sections 307/326 and 364 I.P.C. fully knowing it to be without jurisdiction being barred by the bar created under Section 437 Cr.P.C. The charge of passing those bail orders for extraneous considerations are not proved for want of evidence."
Much reliance has been placed by Mr. Srivastava upon the judgment of the Hon'ble Supreme Court in P.C.Joshi Vs. State of U.P. 2001 (6) SCC 491 wherein considering the case of grant of bail, the Hon'ble Supreme Court has observed " that if there was possibility in a given set of facts to arrive at a different conclusion that is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The Enquiry Officer has not found any other material, which could 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 does not attribute any motive to him just for extraneous consideration that he had acted in that manner."
In the instant case this cannot be held to be cases where any other view could have been possible, i.e., bail could not have been granted. Had the cases been placed before the competent Court, perhaps bail could have been granted there also. The issue involved here is altogether different that petitioner entertained the bail applications and granted bails having no jurisdiction at all. Therefore, the facts of the instant case are quite distinguishable from that involved in case of P.C.Joshi (Supra). As the Enquiry Officer has categorically held that the petitioner knowing fully well that he had no jurisdiction to entertain the bail applications, not only entertained the same but passed the bail orders. More so, case requires consideration in the light of the judgment of the Hon'ble Apex Court in State of Andhra Pradesh Vs. S. Sree Rama Rao, AIR 1963 SC 1723 it has categorically been held by the Apex Court that there is no such rule that an offence is not established unless it is proved beyond doubt. The inference may be drawn from the circumstances and facts fully established in a particular case.
In such circumstances it cannot be held that the orders had been passed by the petitioneron account of negligence or error of judgment rather it is a case where the orders had been passed by the petitioner knowing fully well that he had no jurisdiction to entertain the bail applications. Learned counsel for the petitioner has not assailed the findings recorded by the Enquiry Officer and Enquiry Officer has categorically held that he fully knew that he had no jurisdiction to entertain the bail applications.
The scope of entertaining the bail application by the Magistrate under Section 437 Cr.P.C. has been dealt with by the Courts time and again.
In Surendra & ors. Vs. State of U.P., 1976 AWC 227 (All) Krishan Kumar Vs. State of U.P. 1985 All LJ 1238, Gurucharan Singh Vs. Delhi Administration, AIR 1978, SC 179 and in Vijai Kumar Vs. State of U.P., 1989 AWC 568. It has been held that in cases punishable with death or with life imprisonment the Magistrate cannot grant bail, unless recourse is had to the proviso to sub-Section (1) of 437.
In Prahlad Singh Bhati Vs. N.C.T. Delhi & Anr., 2001 AIR SCW 1263 the Apex Court ruled:-
"We would reiterate that in cases where the offence is punishable with death or imprisonment for life which is triable exclusively by a Court of Sessions, the Magistrate may, in his wisdom, refrain to exercise the powers of granting the bail and refer the accused to approach the higher Courts unless he is fully satisfied that there is no reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, which indicates that if the material placed before the Magistrate is sufficient enough to say that there are no reasonable grounds to believe that the accused had committed offence punishable with death or imprisonment for life, he can grant bail. Generally, he should refrain from doing so."
Then there was no scope of entertaining the said applications for bail by the petitioner and he was fully aware of the fact that he had no jurisdiction to deal with those applications.
We also find no force in the submissions made on behalf of the petitioner that the arrears of salary etc. have been withheld without complying with the requirement of Rule 54 B of the U.P.Fundamental Rules. Petitioner himself has annexed the copy of the notice sent to him on 17.12.1999 as Annex.-6 and petitioner has submitted his reply on 15.2.2000 (Annex.-7). Thus, the submissions made in this regard are totally misconceived.
Thus in view of the above, the Enquiry Officer has categorically held that the petitioner was fully alive of the fact that he had no jurisdiction to entertain the bail applications as the same did not fall within scope of the proviso to Section 437 Cr.P.C. Therefore, it is not possible to hold that it was merely a judicial error and thus no punishment could be imposed.
As the judicial review is permissible only against the decision-making procedure and not against the decision, we see no ground to interfere with in the case. We are of the view that petitioner has been dealt with very leniently. The case does not present any special feature warranting any interference in a limited jurisdiction of judicial review.
In the last it has been submitted that the representations of the petitioner have not been dealt with by this Court by a reasoned order.
In absence of any statutory requirement it cannot be held that authority is bound to pass every time a speaking and a reasoned order, particularly in a case like this when file goes through the hands of so many officers every day who passes the appropriate orders on it and finally, the competent authority after considering the notes and orders passed by different officers takes a decision. In fact the reasons may be the notings made by the officers in the file. Thus, it is not necessary that the orders passed by the statutory authority should be a reasoned one or the reason should be communicated along with the order to the aggrieved officer. (Vide Union of India & ors. Vs. R.G. Nambodiri & ors., AIR 1991 SC 1216; Ram Kumar Vs. State of Haryana, AIR 1987 SC 2043; Somdutta Vs. Union of India & ors., AIR 1989 SC 414; S.N.Mukherji Vs. Union of India & ors., 1990 (4) ASCC 594; State Bank of Bikaner & Jaipur Vs. Prabhu Dayal Grover, 1995 (6) SCC 279).
No other point has been urged.
We find no force in the petition and we accordingly dismiss the petition. No costs.
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