Indira Banerjee, J.@mdashThis appeal being APO 213 of 2014 filed by the Registrar General, High Court, Calcutta is against an order dated 23rd June, 2014 passed by the Hon''ble Single Bench in Writ Petition No. 555 of 2014 filed by a Judicial Officer, of the rank of District Judge, inter alia challenging the disciplinary proceedings initiated against her.
2. By the order under appeal, the Hon''ble Justice Sanjib Banerjee directed that no further steps be taken in respect of the impugned action without the express previous leave of Court.
3. Being aggrieved by the interim order, the Registrar General of this Court preferred this appeal. The Registrar (Administration), the Registrar (Judicial Service) and the Hon''ble The Chief Justice of this Court who were impleaded respondents in the writ petition, have been made proforma respondents in the appeal.
4. In course of hearing of the appeal before a Division Bench, comprising the Hon''ble Justice Jyotirmay Bhattacharya and the Hon''ble Justice Tapash Mookherjee, on 3rd September, 2014 it was suggested by Mr. Shaktinath Mukherjee, learned Senior Counsel appearing on behalf of the writ petitioner, on instructions, and agreed by Mr. Kishore Datta, appearing for the Registrar General of this Court, that the writ petition might itself be taken up for hearing by the Division Bench along with the appeal. The Division Bench, therefore, decided to hear the writ petition and issued directions for affidavits in the main writ petition. Reference may be made to the Order dated 3rd September, 2014 of the Division Bench.
5. The time granted to the Registrar General and others, to file their Affidavit in Opposition to the writ petition had to be extended twice, and the writ petitioner also sought extension of time to file her Affidavit in Reply twice. In the meanwhile, the then Registrar General and the then Registrar, Judicial Service, impleaded parties to the writ petition, were elevated as Judges of this Court.
6. The appeal, along with the writ petition, appeared in the list of the Division Bench, comprising the Hon''ble Justice Jyotirmay Bhattacharya and the Hon''ble Justice Debi Prasad Dey, but was released by an order dated 16th July, 2015, since the Hon''ble Justice Debi Prasad Dey had, prior to his elevation, been the Registrar (Judicial Service), and the Enquiry Officer in the disciplinary proceedings initiated against the writ petitioner, and by an order dated 27th July, 2015 the Hon''ble The Chief Justice assigned the appeal along with the connected writ petition to this Bench.
7. The writ petitioner, Ms. Ananya Bandopadhyay, was recruited to the post of Additional District and Sessions Judge directly from the bar, and joined service on 29th October, 2009. After initial posting as Additional District and Sessions Judge, 9th Court at Alipore in South 24-Parganas, Ms. Bandopadhyay was transferred to the post of Additional District Judge, 1st Court, Siliguri. Ms. Bandopadhyay joined the post of Additional District Judge, 1st Court, Siliguri on 6th July, 2012.
8. By a notification No. 1910A dated 16th May, 2013, Ms. Bandopadhyay was appointed District and Sessions Judge, Uttar Dinajpur, subject to the final decision of a writ petition being WP No. 22564(W) of 2011 pending in this Court. Ms. Bandopadhyay made over charge of the office of Additional District Judge, 1st Court, Siliguri, in the forenoon of 20th May, 2013, upon her appointment as the District and Sessions Judge, Uttar Dinajpur.
9. On 17th and 18th May, 2013, being Ms. Bandopadhyay''s last two working days in the office of the 1st Additional District Judge, Siliguri, before she remitted that office and joined as District Judge, Uttar Dinajpur on the forenoon of Monday, 20th May, 2013, Ms. Bandopadhyay apparently delivered about twenty two judgments.
10. It is a matter of record that all the cases, which were disposed of on 17th and 18th May, 2013, were posted in the Daily Cause list of those days, and there were corresponding entries in the Court Diary in respect of all these matters.
11. It appears that some time after Ms. Bandopadhyay remitted the office of the 1st Additional District Judge, Siliguri, and joined as District Judge, Uttar Dinajpur, one K.L. Lohia, Advocate who had been appearing in only one of the twenty two cases, apparently disposed of on 17th and 18th May, 2013, and had lost the case, lodged a complaint against Ms. Bandopadhyay with the Chief Justice of this Court, with a copy to the Chief Justice of India, alleging in effect, that the writ petitioner had actually written out judgments shown to have been delivered on 17th and 18th May, 2013, in June, 2013, after she had remitted office as 1st Additional District Judge, Siliguri, pre dated the judgments, and got them incorporated in the records.
12. The records produced in Court reveal that, on 9th September, 2013, the then Registrar (Vigilance and Protocol), Sri Siddhartha Chattopadhyay, sought permission of the Hon''ble Chief Justice to proceed to Siliguri for enquiry into the complaint of K.L. Lohia. On the same day, the then Hon''ble Chief Justice directed him to hold the enquiry. From the records, it is not clear what happened after the then Registrar (Vigilance and Protocol) obtained permission to make preliminary enquiry.
13. After the transfer of Sri Siddhartha Chattopadhyay from the post of Registrar (Vigilance & Protocol), the then Hon''ble the Chief Justice directed the then Registrar (Vigilance and Protocol), Sri Sugata Mazumdar, who is presently the Registrar General, to conduct the enquiry. The then Registrar (Vigilance & Protocol), Mr. Sugata Mazumdar, however, recused himself from the preliminary enquiry on personal grounds, as he had been a batchmate of Ms. Bandopadhyay.
14. On 21st January, 2014, the then Registrar General put a note before the then Chief Justice, which is extracted hereinbelow:-
"Lay before the Hon''ble the Chief Justice, High Court Calcutta.
This relates to proposal for modification of the Enquiry Officer.
1. I do humbly submit that, a complaint letter of an Advocate K.L. Lohia, against Judicial Officer Smt. Ananya Bandhopadhyay, the then Additional District & Sessions Judge, 1st Court, Siliguir over the issue of signing many judgment by putting back dates Your Lordship has been pleased to assign Ld. Registrar (Vigilance & Protocol) to proceed to Siliguir for a thorough enquiry over the matter.
2. I do further submit that at the relevant time Sri Siddhartha Chattopadhyay was the Ld. Registrar (Vigilance & Protocol), which post is now being held by Sri Sugata Muzumdar.
3. I do further submit that Sri Sugata Muzumdar present Ld. Registrar (Vigilance & Protocol) expressed his embarrassing situation in the matter of preliminary enquiry as against Smt. Ananya Bandhopadhyay, who is at present District & Sessions Judge Uttar Dinajpur on the ground that they are batchmates to each and every, I propose to assign the preliminary enquiry to some other officer of the Registry, as Your Lordship may fit and proper.
4. Your Lordship approving, the foregoing Paragraph No. (3) the work of preliminary enquiry as against the abovenamed Judicial Officer Smt. Ananya Bandhopadhyay over the matter of the complaint letter of Ld. Advocate K.K. Lohia, Siliguri Bar Association may be assigned to some other officer of the Registry,
Or, to pass necessary order, or, direction as Your Lordship may deem fit and proper.
Registrar General
21.01.2014"
15. By an Order dated 21st August, 2014, the then Hon''ble the Chief Justice assigned the preliminary enquiry to the Registrar (Administration), Mr. Ashutosh Kar. The attention of the then Hon''ble Chief Justice was apparently not drawn to the fact that the appointment of Ms. Ananya Bandopadhyay, as District and Sessions Judge, Uttar Dinajpur, was expressly subject to the final decision in the writ petition being WP No. 22564(W) of 2011 filed by Mr. Ashutosh Kar along with others, inter alia challenging the draft gradation list prepared by this Court.
16. In this context, it will be pertinent to refer to the notification for transfer and posting of Ms. Ananya Bandyopadhyay being notification No. 1910-A dated 16th May, 2013 which reads "Smt. Ananya Bandhopadhyay, a member of the West Bengal Judicial Service, now posted as Additional District and Sessions Judge, 1st Court, Siliguri, Darjeeling is hereby transferred and posted to be the District and Sessions Judge, Uttar Dinajpur, vice vacant Court last presided by Sri Dibakar Das.
The appointment of Smt. Ananya Bandhopadhyay as District and Sessions Judge, Uttar Dinajpur is subject to the final decision of a writ petition being No. 22564(W) of 2011."
17. The Registrar (Administration), Mr. Ashutosh Kar, however, did not deem it necessary to disclose to the Hon''ble Chief Justice, the fact that he was one of the writ petitioners in the Writ Petition being WP No. 22564(W) of 2011, to the final result of which, the appointment of the writ petitioner as District and Sessions Judge, Uttar Dinajpur, had been subject. Moreover, the writ petitioner Ms. Ananya Bandyopadhyay was, as per the gradation list impugned in the said writ petition, senior to Mr. Kar. The said writ petition was, in effect and substance, a writ petition against Ms. Ananya Bandopadhyay and other direct recruits who are placed higher in seniority than Mr. Ashutosh Kar in the gradation list impugned in the aforesaid writ petition.
18. Mr. Ashutosh Kar, the writ petitioner in the writ petition, to the result of which the appointment of Ms. Ananya Bandopadhyay as District and Sessions Judge, Uttar Dinajpur was subject, put up a note before the then Hon''ble Chief Justice, which is extracted hereinbelow:
"LAY BEFORE THE HON''BLE THE CHIEF JUSTICE
This relates to a complaint from Mr. K.L. Lohia, Advocate, Siliguri Court against Smt. Ananya Bandyopadhyay erstwhile Additional District & Sessions Judge, 1st Court, Siliguri.
It is humbly submitted that according to the complaint the said presiding Judge kept the verdict pending for 3 to 4 months and thereafter allegedly had passed the judgements after that period but putting back dates on the judgements as if it was passed on the date fixed. The Ld. Advocate has claimed that such circumstance has caused huge loss to the litigants, as they could not get the opportunity to file appeal/revision or review in time. He has further claimed that the registries of the Court if be scrutinised then the truth will come to the light.
In such circumstances, Your Lordship approving, I may be permitted to proceed to Siliguri Court for a thorough enquiry in this regard on a convenient date or Your Lordship may pass any other order/orders as Your Lordship may deem fit and proper.
Submitted."
19. The language and tenor of the said note put up by Mr. Ashutosh kar, Registrar (Administration) is, to say the least, improper, and reflects a sadistic pleasure in highlighting the allegations against his senior colleague, against whom he was fighting a litigation. In a note seeking permission of the Chief Justice to proceed to Siliguri, to conduct an enquiry against Ms. Bandopadhyay in relation to the complaint of Mr. Lohia, it was not necessary at all to repeat the allegations in the complaint. Mr. Ashutosh Kar was apparently biased against Ms. Bandopadhyay.
20. There is not a whisper in the note, with regard to the litigation filed by Mr. Ashutosh Kar, to which the appointment of Ms. Ananya Bandhopadhyay as District and Sessions Judge, was subject. The attention of the Hon''ble the Chief Justice was apparently also not drawn to the fact that Ms. Bandopadhyay was senior to the Registrar (Administration), Mr. Ashutosh Kar.
21. The assertion in Paragraph 17 of the writ petition that the Registrar (Administration), Mr. Ashutosh Kar, who conducted the preliminary enquiry and the Registrar, Inspection II, Mr. Subhashis Dasgupta were the writ petitioners in W.P. No. 22564(w) of 2011, where the seniority of the direct recruits vis-a-vis the promotees and the gradation list is under challenge, is dealt with in Paragraph 11 of the Affidavit in Opposition affirmed by the then Registrar General, which is extracted hereinbelow for convenience.
"With reference to paragraph 17 of the said application, I deny each and every allegation and dispute the correctness of the submissions made therein save and except what are matters of record.
The allegation that Mr. Ashutosh Kar, Registrar (Administration) and Mr. Subhasish Dasgupta, Registrar, Inspection (II) having filed W.P. No. 22564 (W) of 2011 has no connection with the framing of the charges and initiating disciplinary proceedings against the petitioner. Such allegations are of no relevance. The High Court Administration has acted without being influenced by either of the officers."
22. Mr. Subhashis Dasgupta had no connection with the proceedings, except that he was later appointed Presenting Officer on behalf of the High Court Administration. A Presenting Officer is not required to be a neutral person, as the role of the Presenting Officer is similar to that of a lawyer, representing one party.
23. However, it cannot be said that the High Court Administration acted without being influenced by Mr. Ashutosh kar, since the entire disciplinary action against Ms. Bandopadhyay, is based on the report of Mr. Ashutosh Kar, the Registrar (Administration), which is vitiated by apparent bias. It is well settled that justice should not only be done, but manifestly seem to have been done. Justice cannot be said to have been done, when charges are framed against a Judicial Officer on the basis of an enquiry conducted by a rival litigant, who appears to have a vested interest in the outcome of the enquiry.
24. The Registrar (Administration), Mr. Ashutosh Kar conducted the preliminary enquiry on 14th and 15th February, 2015.
The Registrar (Administration) interrogated the complainant, Mr. Kishan Lal Lohia on 14th February, 2014.
25. The complainant, Mr. Lohia was again examined on 15th February, 2014 and his deposition as recorded by Mr. Kar is set out hereinbelow verbatim:-
"I am practicing Advocate of Siliguri Bar Association. I have submitted a complaint to the Hon''ble Chief Justice, High Court, Calcutta and forwarded a copy of the same to the Honb''le Chief Justice, Supreme Court of India. In my complaint I have specifically mentioned that Misc. Judicial Case No. 12 of 2011 was heard by the then Ld. Additional District & Sessions Judge (1st Court), Siliguri Smt. Ananya Bondpadhaya on 25-01-13. The date was fixed on 06-03-13. On 06-03-13 further date for hearing was fixed on 25-03-13. But on 25-03-13 after hearing, another date was fixed for passing order. I went to the Department on 10-06-13 for obtaining certified copy of the said order but I was informed that the order was not passed. Before the same I had to visit the Court to know about the order. But suddenly I came to know that on 17-05-13 the order was passed. It is surprising that without giving me the actual date the order was passed. On perusal of the certified xerox copy of the order sheet I found that there was interpolation on date fixed on 25-03-13 fixing 17-05-13 for passing necessary order. I also come to know from the certified copy that by the same handwriting and pen it was written as 17-05-13 It was manipulated by interpolation at the time of passing of the order. The same pen and ink was used to make the date of order as 17-05-13 in the order dated 25-03-13. But there is no existence of the said order up to 13-06-13 as per my inquiry about the matter in the Department. This is a manipulated order.
I have filed a petition under Order 9 Rule 13 of CPC for setting aside an ex-parte decree which was passed in favour of the Landlord in Title Suit No. 09 of 2006. The petitioner of this Misc. Case was the tenant. I submitted an application for certified copy on 13-06-13 and I got the certified copy on 11-07-2013. It was ready on 10-07-13. I am submitting the copy of the certified copy which I obtained from the Department. The client has lost all faith on me as the matter falls under limitation and he had gone to the Hon''ble High Court. But I do not know the fate of that Appeal till now. The rests part which has been given in my complaint is my other allegation against the then Officer and that may be taken into consideration at the time of disposal taking note of the following entries in the Court Diary for the period since 07-03-13, 25-03-13, 26-03-13, 17-04-13, 18-04-13, 26-04-13, 29-04-13, 02-05-13, 16-05-13 and 17-05-13.
The document is marked as Exhibit-1.
It would be found that all those entries were subsequently made in the printed diary. Many dates have been interpolated and orders passed in back dates. I am sufferer to the same and as such I have made this complaint. Hard Disk of the computer if be tracked with the help of an expert then it would be found that actually on which dates those judgment have been typed and written and subsequently shown to be delivered on what date.
Concern Dealing Assistant''s activities may be taken into consideration for checking out my allegation in this regard."
26. On 15th February, 2014 the Registrar (Administration) examined Shri Madhusudan Chakraborty, the then Bench Clerk of the 1st Court of Additional District and Sessions Judge, Siliguri and Shri Partha Narayan Moitra, Stenographer attached to the said Court. He also took into his custody, certain documents, which he found relevant, such as Shorthand books, Court Diary, Daily Cause list as also photocopies of certain orders.
27. On examination by the Registrar (Administration), Mr. Kar, the Court Stenographer, Partha Narayan Moitra, gave a list of the judgments dictated to him by Ms. Bandopadhyay during her tenure, obviously by reference to his shorthand note books. He further deposed:-
"Few judgments have been taken by me from her mouth to machine. Some judgments have been prepared from her manuscript. But I have not taken all the judgments passed on 17.05.13 and 18.05.2013 which are 22 in numbers. I cannot recollect whether all those judgments were prepared by me or not. I had no habit to keep the judgment pending after taking dictation from the P.O. used to type all the dictations taken from the P.O. within the day. Mouth to machine judgment used to be prepared at one sitting. I have not taken dictation all the judgments (22 Nos.) either on 17th or 18th or 10 days before because at that time the then Ld. Presiding Officer was on leave. She was on leave on and from 09.05.13 till 15.05.13. I have not preserved all the Steno Books from 1.1.13 to 1.1.14."
28. The concerned Bench Clerk of Additional District and Sessions Judge, 1st Court, Siliguri, Madhusudan Chakraborty, who was at the time of his examination Bench Clerk of the Court of Additional Chief Judicial Magistrate, Siliguri, deposed:-
"I, Shri Madhusudan Chakraborty erstwhile posting as Bench Clerk-I of Additional District & Sessions Judge (1st Court), Siliguri in the period of Ananya Bandopadhaya erstwhile Additional District & Sessions Judge (1st Court), Siliguri. I have received the Judgment in bulk from Sm. Ananya Bondopadhaya erstwhile Additional District & Sessions Judge (1st Court), Siliguri and thereafter I inserted all these Judgments in the Court Diary as well as in the Cause List."
29. Ms. Bandopadhyay apparently delivered 22 judgments on 17th and 18th May, 2013. The materials on record reveal that Shri K.L. Lohia, the Complainant, was engaged in only one of the twenty two matters apparently disposed of by Ms. Bandopadhyay on 17th and 18th May, 2013. Mr. Lohia''s client had not succeeded.
30. There was no complaint from any other Advocate other than Mr. Lohia. Mr. Asutosh Kar, however, accepted the statement of Mr. Lohia, not supported, or rather, contradicted by the Bench Clerk but for reasons best known to himself, chose not to examine any of the other Advocates engaged in matters which had been disposed of on those two days, to find out whether they had any similar grievance.
31. Moreover, Mr. Asutosh Kar, an experienced Judicial Officer, shut his eyes to apparent absurdities and inconsistencies in some of the allegations, as discussed hereinafter, in the uncorroborated complaint of Mr. Lohia, a disgruntled Advocate, who had lost a case, and along with the case, the confidence of his client, as will be evident from his written complaint, as well as his statement recorded by Mr. Kar.
32. When examined by the Registrar (Administration), Mr. Ashutosh Kar, Mr. Lohia stated that the concerned case i.e. Misc. Judicial Case No. 12 of 2011 had been heard by Miss. Bandopadhyay, learned Additional District and Sessions Judge, 1st Court, Siliguri on 25th January, 2013. The next date was fixed on 6th March, 2013. On 6th March, 2013, further date for hearing was fixed on 25th March, 2013, but on 25th March, 2013 after hearing, another date was fixed for passing the order. Mr. Lohia did not state which date had been fixed for passing the order.
33. When an application is adjourned to another date for orders, the appearing advocate would know that date, if he were present in Court at the time of hearing. In case the advocate was not present in Court, or in case of any doubt, the advocate would ascertain the next date from the Bench Clerk, or may be, by inspection of records. Furthermore, if as stated by Mr. Lohia, he went to the department on 10th June, 2013, to obtain a certified copy of the order, he must have known that an order had been passed. It seems that, having lost the case, and the confidence of his client, Mr. Lohia feigned ignorance, just to create grounds to attack the order, with ulterior intent, may be in an attempt to impress his client.
34. Mr. Lohia''s annoyance at having lost the confidence of his client is borne out by his statement, as recorded by Mr. Kar, extracted hereinbelow:
"I am submitting the copy of the certified copy which I obtained from the Department. The client has lost all faith on me as the matter falls under limitation and he had gone to the Hon''ble High Court. But I do not know the fate of that Appeal till now."
35. It is apparent that Mr. Lohia has, as an afterthought tried to take unfair advantage of an overwriting in the Order dated 25th March, 2013 in respect of the date fixed for passing of necessary order, which according to him, was ''interpolation''. If no date had been fixed, there would have been no scope for interpolation by overwriting the date.
36. Mr. Lohia has stated that he found that the overwriting was in the same handwriting and pen. The date 17th May, 2013 had been overwritten. This, according to him was manipulated at the time of passing of the order dated 17th May, 2013. However, the fact that the overwriting was in the same pen and in the same writing suggests that the correction was possibly done at the time the order dated 25th March, 2013 was taken down.
37. Mr. Lohia has deposed "I went to the department on 10.06.2013 for obtaining certified copy of the said order but I was informed that the order was not passed. Before the same I had to visit the Court to know about the order. But suddenly I came to know that on 17-05-13 the order was passed. It is surprising that without giving me the actual date, the order was passed."
38. Mr. Lohia has neither stated who gave him the information that order in his case had not been passed, nor stated how he suddenly came to know that an order had been passed on 17th May, 2013. The employees of the department responsible for supply of certified copies of orders could not have had knowledge of whether an order had been passed in Court or not. They could at best have told Mr. Lohia whether the records had been sent down to the Department from the Court or not. Only the Bench Clerk could have had knowledge of whether any order had been passed. The Bench Clerk never stated that the judgments dated 17th and 18th May, 2013 were made ready afterwards.
39. Moreover, it seems unbelievable, that on 10th June, 2013 Mr. Lohia should be told that no order had been passed, but on 13th June, 2013 he should apply for certified copy of the order, after suddenly coming to know that on 17th May, 2013, order had been passed.
40. Any reasonable person, properly instructed in law and proceeding with an open mind, free from bias, would have seen through the motivated attempt of Mr. Lohia to shift on the writ petitioner, Ms. Ananya Bandopadhyay, the blame for the outcome of his client''s case. The complainant, Mr. Lohia, did not even hesitate to go to the extent of suggesting that the appeal of his client had become time barred because of the alleged wrongful acts of Ms. Bandopadhyay, even though it is a matter of record that the judgment had apparently been delivered on 17th May, 2005, and the application for certified copy made on 13th June, 2013.
41. Even a junior Advocate would know that the time to appeal to the High Court from a judgment and order of the Additional District Judge/District Judge is 90 days and in computing the period of 90 days, the time taken to obtain a certified copy of the order would have to be excluded. If application for certified copy of any judgment dated 17th or 18th May, 2013 was made on 12th or 13th June, 2013, within 25 to 26 days from the date of the impugned judgment and order, well within the period of limitation of 90 days, it could not be said that Mr. Lohia''s client''s appeal became time barred for any fault of the writ petitioner, Ms. Ananya Bandopadhyay. When the certified copy was obtained on 11th July 2013, there was still over two months time left, to file an appeal in the High Court.
42. There is another interesting fact, to which our attention has been drawn, by Mr. Sakti Nath Mukherjee, Senior Advocate, appearing for the writ petitioner, Ms. Ananya Bandopadhyay. A photocopy of the alleged statement of the complainant, Lohia has been furnished to the writ petitioner and the same is annexed to the writ petition. At the end of the statement, on the left there is an endorsement of the Stenographer which reads "dictated and corrected by Shri Asutosh Kar, Registrar (Administration)". It is unthinkable that a Judicial Officer conducting a preliminary enquiry should himself give dictation to the Stenographer instead of asking the Stenographer to record the statement of the complainant verbatim.
43. Apart from the endorsement in the statement, the wide difference in the style of English in which Mr. Lohia''s complaint has been written and the style of English in Mr. Lohia''s statement as recorded by Mr. Kar, makes it patently clear that Mr. Lohia''s statement, as recorded by Mr. Kar, could not be a verbatim reproduction of what he had actually stated.
44. The Court Stenographer, Shri Partha Narayan Moitra, gave a list of the judgments dictated to him during the tenure of Ms. Bandyopadhyay upon reference to his shorthand notebooks. He also deposed that a few judgments dictated to him by Ms. Bandopadhyay were typed by him directly on the machine and some judgments were typed by him from "manuscripts" given to him by Ms. Bandopadhyay. He stated that he had not preserved all the Steno books from 1st January, 2013 till 1st January, 2014. He stated that he had not taken dictation of all the judgments passed on 17th May, 2013 and 18th May, 2013 which were 22 in number, meaning thereby that he had taken dictation of many, or atleast some of them. Examined about nine months after Ms. Bandopadhyay remitted the office of Additional District Judge, 1st Court, Siliguri, the Court Stenographer, Shri Partha Narayan Moitra, stated that he could not recollect whether all those judgments were prepared by him or not. He, however, stated that he had not taken down "all" (sic any) judgments for about 10 days prior to 17th/18th May, 2013 as Ms. Bandopadhyay had been on leave from 9th May, 2013 till 15th May, 2013.
45. The Bench Clerk, Shri Madhusudan Chakraborty only deposed that he had received the judgments in bulk from Ms. Ananya Bandopadhyay and he had inserted the judgments in the Court Diary as well as in the Cause List. Significantly, the statements of the Court Stenographer, Shri Partha Narayan Moitra and the Bench Clerk, Shri Madhusudan Chakraborty, copies whereof have been annexed to the application filed by the Registrar General for stay of operation of the interim order of the Single Bench, also contain the endorsement "dictated and corrected by Ashutosh Kar, Registrar (Administration)".
46. The Registrar (Administration), Mr. Ashutosh Kar dictated all the statements and corrected the statements himself, instead of directing the Stenographer to take down the statements verbatim. With the greatest of respect to the Registrar (Administration), his style of English makes some of the statements difficult to comprehend.
47. After the so-called enquiry, the Registrar (Administration) prepared a report, relevant excerpts whereof are extracted hereinbelow:
"After perusal of the statement of Sri. Lohia, I find that he has made serious allegation of passing orders/Judgements by the erstwhile Ld. Additional District & Sessions Judge, 1st Court, Siliguri, Smt. Ananya B andyopadhyay (Flag ''A'')
Entire order sheet submitted by Mr. Lohia goes to show that the matter heard on 25.1.2013 but it was finally heard on 25.3.2013 vide order No. 13. It reveals from the order sheet that 17.5.2013 has been written as the date of passing necessary order. There is interpolation on the date bearing no signature of the then Ld. Presiding Officer. This order sheet and the Judgement produced by Mr. Lohia is marked as Flag ''B''.
After going through this allegation, I have gone through the court diary very carefully. In respect of his allegations Mr. Lohia has given reference of several dates in which Judgements have been passed in a bulk manner. The dates are 7.3.13, 25.3.13, 26.3.13, 17.4.13, 18.4.13, 26.4.13, 29.4.13, 2.5.13, 16.5.13 and 17.5.13.
After going through the court''s diary, I find that the court''s diary is showing that the then Ld. Additional District & Sessions Judge, Smt. Bandyopadhyay has passed several Judgements in a bulk manner and she has worked in that post up to 18.5.2013. I have obtained the xerox copy of the court diary duly attested and authenticated by Sri. Saumyabrata Sarkar, Ld. Additional District & Sessions Judge, Siliguri on and from 2.1.2013 to 18.5.2013 (Flag ''C'' pages 1 to 212). After perusing all those dates, I find that on 25.3.2013, 17.4.2013, 17.5.2013 and 18.5.2013 bulk judgements have been delivered by the Ld. Presiding Officer. Xerox copy of the cause list duly certified has been collected by me (Flag ''D'' pages 1 to 103) and it reveals from the daily cause list that on 25.3.2013 (Flag ''D1''), 17.4.2013 (Flag ''D2''), 17.5.2013 (Flag ''D3'') and 18.5.2013 (Flag ''D4'') judgements have been delivered in a bulk manner.
The specific case under scrutiny i.e. Misc. Judicial case No. 12 of 2011 arising from Title Appeal No. 9(s) 2006 goes to show that on 25.1.2013 it is not noted in the court diary but it is present in the cause list the date i.e. 17.5.2013 is duly noted in both of them. Such huge disposal of cases in one or two days has forced me to see whether the Judgements were actually passed or not, or that has been noted in the court diary erroneously. Thereafter as per my request Ld. District Judge, Darjeeling and Ld. Additional District & Sessions Judge, 1st Court, Siliguri have brought out all those disposed of records 17.5.2013 and 18.5.2013. After perusing those records I find that on 17.5.2013 as many as 10 (ten) number of cases have been shown as disposed of cases and on 18.5.2013, 12 (twelve) number of cases have been shown as disposed of cases. After going through the record, I find that some sessions cases were heard on 18.5.2013 and Judgement was delivered on 18.5.2013. In a case arguments were heard on 17.5.2013 and Judgement was delivered on 17.5.2013 and argument was heard on 16.5.2013 and Judgement was delivered on 17.5.2013. The number of cases is given as follows:
...................
I have recorded the statement of Sri. Partha Narayan Moitra, Stenographer attached on the Ld. Addl. Dist. & Sessions Judge, Siliguri. In his statement he has given a list of the Judgements of cases which were also stated to me that he has prepared few Judgements by mouth to machine process but he could not say the number of those cases to me which he prepared by mouth to machine process. Sri. Partha Narayan Moitra has categorically stated to me that on 17.5.2013 and 18.5.2013 or 10 (ten) days before of both the dates he has not prepared any Judgement after taking dictation from Smt. Bandyopadhyay either by taking dictation or mouth to machine process. He has handed over the 8 (eight) numbers of Steno notebooks to me and that has been duly authenticated by Sri. Saumyabrata Sarkar, Ld. Additional District & Sessions Judge, 1st Court, Siliguri. He has stated that few Steno notebooks are missing but they are scanty in number. 8 (eight) number of Steno notebooks are marked as Flag ''F''. The statement on Partha Narayan Maitra, Stenographer attached to the Court of Ld. Additional District & Sessions Judge, 1st Court, Siliguri is marked as Flag ''G''.
While examining Sri Madhusudan Chakraborty, the Bench Clerk of erstwhile Ld. Addl. Dist. & Sessions Judge, 1st Court, Siliguri, Smt. Bandyopadhyay all the court diary and cause lists were shown to him. He has admitted that all the handwritings in the court diary and cause lists are of him. He was not able to give any satisfactory answer that why so many Judgements were passed on those dates i.e. 17.5.2013 and 18.5.2013 and who prepared these Judgements because it is known to me that Sri. Partha Narayan Maitra has not prepared any Judgement on both the dates and prior to those dates. The Bench Clerk Sri. Chakraborty has tried to make the enquiry confused by saying that after receiving the Judgements he has put it into the court''s diary and the cause list. He has admitted that there is manipulation in the dates passed in Misc. Judicial Case No. 12 of 2011 of Mr. Lohia. He was not co-operative at the time of the enquiry and had tried to disassociate him from everything. He has not even given any statement throwing light on the matter. His statement is marked as Flag ''H''. Accordingly, I have asked the then Stenographer, Sri. Partha Narayan Moitra and Ld. Addl. Dist. & Sessions Judge, 1st Court, Siliguri, Sri. Saumyabrata Sarkar to search the computer records of the court to trace out this judgements and locate the dates on which those Judgements have been prepared. But both of them has stated to me that all the data in the computer have been deleted by the Ld. The then Presiding Officer while she was transferred from the station. I like to mention here that 18.5.2013, was the last working date of Smt. Bandyopadhyay in that station.
.........Mr. Lohia had applied for the certified copy of the order and one Pintu Ghosh had applied for the copy of the said order on 12.6.2013. in that statement she has given all the details of the applications for certified copy received by her for supplying the certified copies in the cases disposed of on 17.5.2013 and 18.5.2013. After going through the statement it has come to light that the petitions were filed in the month of June for obtaining certified copies of all the cases which were disposed of on 17.5.2013 and 18.5.2013. This statement is marked as Flag ''I''.
..............
During the enquiry I find that the regular Stenographer attached to the Court of Smt. Bandyopadhyay has not taken dictation of any Judgement passed on 17.5.2013 and 18.5.2013 and wherefrom those Judgements were prepared could not be traced out for the non-cooperation of the Bench clerk, Madhusudan Chakraborty and on which dates all those entries were made in the diary and the cause list cold not be ascertained. It reveals from the daily cause list that Smt. Bandyapadhyay has not put her signature in the foot of the cause lists on Bench Clerk, Sri. Madhusudan Chakraborty has not been able to clear the mist rather refused to clear the mist surrounding with the allegation of Mr. Lohia. The court diary was maintained in a haphazard manner along with the daily cause list. The method of preparation of Judgement specifically on 17.5.2013 and 18.5.2013 by the Ld. The then Presiding Officer could not be identified through in several cases either the arguments were heard on 16.5.2013, 17.5.2013 and even 18.5.2013 itself. In a whole, it reveals that there is substance in the claim of Mr. Lohia. I am placing this report before Your Lordship for Your Lordship''s kind perusal."
48. The findings of Mr. Kar in the above report are summarized and discussed briefly hereinafter:-
(i) Mr. Kar found there was overwriting in the order dated 25.03.2013, of the date 17.05.2013, without the signature of Sm. Bandopadhyay. This omission does not amount to misconduct, and certainly not misconduct for which major penalty might be imposed, by initiation of disciplinary proceedings.
(ii) Mr. Kar found that Judgments were delivered in bulk on 07.03.13, 25.03.13, 26.03.13, 17.04.13, 18.04.13, 26.04.13, 29.04.13, 02.05.13, 16.05.13 and 17.05.13. Delivery of judgments in bulk is not misconduct.
(iii) Mr. Kar also found that huge number of cases had been disposed of on 17.05.2013 and 18.05.2013 (22 cases). Huge disposal of cases in two days, far from being misconduct, is commendable.
(iv) Mr. Kar found in some sessions cases, judgment was delivered on the date of conclusion of arguments. This is only to be appreciated.
(v) Mr. Kar observed that the Bench clerk had admitted that the handwriting in the Court Diary was his handwriting. If entries in the Court Diary were made by the Bench Clerk, the responsibility for any overwriting in the Court Diary cannot be fixed on the Judge.
(vi) Mr. Kar found that the Bench clerk could not satisfactorily explain why so many judgments were delivered on 17.05.2013 and 18.05.2013. We are unable to appreciate how the Bench Clerk could have explained why the Judge had delivered so many judgments on 17.5.2013 and 18.5.2013. The Judge alone could have stated why she had delivered so many judgments on those two days.
(vii) Mr. Kar found that the Court Stenographer had not prepared any judgment on 17.05.2013 or 18.05.2013 or prior to those days and the Bench Clerk could not satisfactorily explain who had prepared the judgments. The Bench Clerk could not have known how the Judge had prepared judgments and orders which were pronounced, but not dictated in open Court. Judges take the assistance of Court Stenographers for their convenience, but they are not obliged to dictate judgments to the Court Stenographer. On the other hand, Judicial Officers are provided with official laptop computers so that they can prepare their own judgments. Furthermore, the Stenographer''s statement has been distorted. Examined many months (about 9 months) after Ms. Bandopadhyay remitted office, the Court Stenographer stated that he could not remember whether he had taken down all the judgments delivered on the last two days.
(viii) Mr. Kar remarked that the Bench clerk was uncooperative and did not give any statement "throwing light on the matter". This shows that the Bench Clerk did not say anything against Ms. Bandopadhyay.
(ix) Mr. Kar found that the data in the computer was deleted by Ms. Bandopadhyay when she was transferred. There was no reason not to do so, as the computer was to be used by her successor.
(x) Mr. Kar found that applications for certified copies in all cases disposed of on 17.05.13 and 18.05.13 were made in June, 2013. The Judicial Officers have nothing to do with the date on which applications for certified copies are made. Advocates often apply for certified copies, after getting instructions from clients. Applications for certified copies of the judgments in Sessions cases which were disposed of in the presence of the accused and the Public Prosecutor, were also made in June, 2013.
(xi) Mr. Kar found that the regular Court Stenographer had not taken dictation of any of the judgements passed on 17.05.2013 and 18.05.2013. This finding is contrary to the evidence of the Court Stenographer, as recorded by Mr. Kar himself, and is perverse. In any case the finding does not disclose any misconduct. On the other hand, Rule 132 of the Civil Rules and Orders framed by this Court requires Judicial Officers to write or type out final judgments and orders themselves.
(xii) Mr. Kar found that Ms. Bandopadhyay had not put her signature in the cause list. There is no reference to any rule which required her to sign the cause list. In any case such omission does not constitute misconduct.
(xiii) Mr. Kar found that the Court Diary was maintained in a haphazard manner. The Court Diary was maintained by the Bench Clerk and not the Judge.
(xiv) Mr. Kar opined that on the whole there was substance in the claim of Mr. Lohia. This opinion is conjectural, based on the uncorroborated complaint in writing and the statement of Mr. Lohia, full of apparent inconsistencies and absurdities.
49. The Registrar (Administration), Mr. Ashutosh Kar made a separate synopsis of his report in connection with the enquiry against the writ petitioner which is set out hereinbelow:
"1) For that, Ld. Additional District & Sessions Judge, 1st Court, Siliguri, Smt. Ananya Bandyopadhyay has passed Judgements in 22 (twenty two) number of cases on 17th and 18th day of May, 2013 which is humanly impossible.
2) For that, the order sheets of those disposed of cases as shown in the table of my report mostly heard on 16th, 17th and also 18th May, 2013 so the Judgements have been prepared within those dates.
3) For that, the Stenographer attached to the said Court, Sri. Partha Narayan Moitra has categorically stated before me that on 17th and 18th May, 2013 and prior to those dates he has not prepared any Judgements after taking dictation from the Ld. Presiding Officer.
4) For that Ld. Presiding Officer, Smt. Bandyopadhyay delivered charge on 20th May, 2013 in the forenoon and 19th May, 2013 was Sunday. Therefore, these Judgements prepared by her should have been done outside the Court after her delivery of charge as Additional District and Sessions Judge, 1st Court Siliguri.
5) For that, those Judgements after 20th May, 2013 were handed over to the Bench Clerk, Sri. Madhusudan Chakraborty and he had written the orders and incorporated the Judgements in the records as stated in my report.
6) For that the Court Diary and the Cause List will go to show that those matters were not prefixed on both dates because entries of the Judgements were put in later on in a haphazard manner in the Court''s Diary and Cause List by Madhusudan Chakraborty, Bench Clerk.
7) For that there is nothing in the Court''s computer wherefrom it could be found that either on 16th, 17th, 18th or on previous any date those Judgements were prepared by the Ld. Presiding Officer by herself by using that computer.
8) For that there is no other alternative but to believe without any hesitation that there is substance in the complaint of Mr. Lohia, Ld. Advocate, Siliguri Bar Association.
This is for Your Lordship''s kind perusal and that may be accepted as part of my report and/or Your Lordship may pass any other direction/directions in this regard."
(Ashutosh Kar)
Registrar (Administration)"
50. The Registrar (Administration), Mr. Ashutosh Kar, has for reasons best known to himself, chosen to ignore the absurdities and inconsistencies in the statement of the complainant Mr. Lohia, as discussed above, distorted the statements of the concerned Stenographer and the concerned Bench Clerk, and purportedly found that there was "no alternative" but to believe there is substance in the claim of Mr. Lohia, knowing fully well that Mr. Lohia was a disgruntled lawyer who had lost his case before Ms. Bandopadhyay, and, with the loss of the case, his client as well, and there was no evidence to support the claim of Mr. Lohia except the letter and the statement of Mr. Lohia himself, allegedly based on hearsay from some person of the department, whose name has not been disclosed.
51. Mr. Kar purported to arrive at the definite finding that there was "no alternative but to believe" that there was substance in the claim of Mr. Lohia, overlooking, or may be, deliberately ignoring, some statements made by Mr. Lohia which completely demolish the case sought to be made out by Mr. Lohia against Ms. Bandopadhyay.
52. With regard to Misc. Judicial Case No. 12 of 2011 in Ms. Bandopadhyay''s Court, in which Mr. Lohia was engaged, Mr. Lohia stated that the case had been heard on 25th January 2013, after which another date was fixed on 6th March 2013, after which further date was fixed on 25th March 2013. On 25th March 2013, after hearing, there was another date fixed for passing order, but there was interpolation in the order dated 25th March 2013. The date for passing order had been changed by incorporating the date 17.5.2013.
53. Mr. Lohia has further alleged that on 10th June 2013, he went to the Department to apply for a certified copy of the order in his case, to be told by someone in the Department, whose name has not been disclosed, that no order had been passed. He asserted that there was no order till 13th June 2013, as per his enquiry in the Department, but on 13th June 2013 he applied for a certified copy of the order, after "suddenly" receiving information that order had been passed on 17.5.2013. The order was, according to Mr. Lohia, a "manipulated" one. Mr. Lohia lamented "he had not been intimated the date of passing order".
54. Mr. Lohia has made much ado about nothing. A mere overwriting of a date, in the order dated 25th March 2013, by a Bench Clerk, has been blown out of proportion. It is Mr. Lohia''s own case that, on 25th March 2013, after hearing, another date was fixed for order. Any reasonable lawyer would ascertain the next date from the Bench Clerk, after the hearing, in case he had not heard the date being announced in Court.
55. Mr. Lohia has nowhere stated, which date was originally fixed for order. It is unbelievable that a lawyer, who knew that another date had been fixed for order, after the hearing on 25th March 2013, would not bother to find out the next date for almost two months.
56. Mr. Kar being a seasoned Judicial Officer himself, should have known that it is the practice in the District Courts to ascertain the date from the Bench Clerk. The Court does not send intimation of dates to appearing lawyers.
57. It is also rather strange that it did not occur to Mr. Kar, that Mr. Lohia must either have known that an order was due to be passed on 17th May 2015, or must have known that an order had been passed on 17th May 2013, as otherwise, he would not have gone to the Department on 10th June 2013 to apply for a certified copy of the order.
58. Furthermore, Mr. Lohia has asserted, on the one hand, that there was no existence of any order till 13th June 2013, as per his enquiry from undisclosed sources in the Department, but nevertheless applied for a certified copy of the order on 13th June 2013 itself on suddenly coming to know, again from an undisclosed source, that an order had been passed on 17.5.2013.
59. Mr. Kar, for reasons best known to himself, did not ask Mr. Lohia to identify the person who allegedly told Mr. Lohia that no order had been passed on 17th May 2013. Nor did Mr. Kar deem it necessary to talk to the employees of the department dealing with certified copies of judgments and orders, to cross check the veracity of Mr. Lohia''s statement.
60. It is also rather surprising that a seasoned Judicial Officer of the rank of District Judge, serving as Registrar (Administration) of this Court should accept as sacrosanct, whatever was stated by a disgruntled, crafty Advocate, notwithstanding inherent contradictions and inconsistencies in his statement, and conclude that there was no alternative but to believe there was substance in his complaint, but disbelieve others, particularly the Court staff, on suspicion of collusion and non-cooperation, just because they did not say anything against Ms. Bandopadhyay.
61. Mr. Kar, an Officer of the rank of District Judge himself, should also have known that the responsibility for an appeal and/or revision getting barred by limitation could never be attributed to Ms. Bandopadhyay, as sought to be done by Mr. Lohia, since application for certified copy of the judgment/order dated 17th May 2013, had been made on 13th June 2013, well within the period of limitation. Mr. Lohia was possibly trying to make Ms. Bandopadhyay a scapegoat for ulterior reasons.
62. The report of the preliminary enquiry reflects closed mind of the then Registrar (Administration), Mr. Ashutosh Kar, himself a seasoned Judicial Officer. Mr. Ashutosh Kar, not only proceeded to carry out an enquiry into allegations against his senior colleague, notwithstanding his perceptible personal interest as a litigant in proceedings to which her appointment as District and Sessions Judge was subject, but he also gave a biased report recording findings contrary to the evidence on record.
63. The perverse manner in which Mr. Ashutosh Kar has ignored the statements, which would have gone in favour of Ms. Ananya Bandopadhyay, and distorted statements to hold against her, amounts to judicial dishonesty and casts serious doubts with regard to his integrity as a Judicial Officer. In the alternative the report is a sordid reflection of his thorough incompetence as a Judicial Officer and his unfitness to hold any enquiry.
64. The report of Mr. Kar is full of inconsistencies. Mr. Kar has, in his report, observed that the Bench Clerk Shri Madhusudan Chakraborty was not cooperative and he tried to "dissociate himself from everything. He has not given any statement throwing light on the matter." Mr. Kar has further observed that Shri Madhusudan Chakraborty "has not been able to clear the mist rather refused to clear the mist surrounding with the allegation of Mr. Lohia". Yet Mr. Kar purported to record a definite finding in Paragraph 5 of his synopsis that the judgments delivered on 17th May, 2013 and 18th May, 2013 had been handed to the Bench Clerk, Shri Madhusudan Chakraborty after 20th May, 2013. This finding is not supported by any evidence at all. Shri Madhusudan Chakravarty never stated that any judgements were given to him after 20th May, 2013.
65. The Court Stenographer Shri Partha Narayan Moitra''s statement has also conveniently been distorted. Shri Partha Narayan Moitra could not recall whether all the judgments prepared on 17th May, 2013 and 18th May, 2013 were prepared by him as will appear from his examination extracted earlier. Shri Partha Narayan Moitra had also stated that he had taken a few judgments from Ms. Bandopadhyay directly on the machine and some judgments had been prepared from ''manuscripts'' given to him by Ms. Bandopadhyay. Shri Partha Narayan Moitra had further stated that he had not taken dictation of all the judgments and/or orders passed on 17th May, 2013 and 18th May, 2013, meaning thereby that he had taken dictation of some of them. He had also stated that he could not recollect whether all those judgements were prepared by him or not.
66. Shri Partha Narayan Moitra was examined almost 9 months after Ms. Bandopadhyay had made over charge. It is only natural that he would not be in a position to remember exactly which judgments had been prepared by him, more so, since he had not preserved all the note books. Shri Moitra stated that he had not taken dictation on 17th or 18th or for about 10 days prior to those days, because Ms. Bandopadhyay had been on leave. He also stated that he had not preserved all the steno-books. Mr. Kar however distorted the statements made by Shri Partha Narayan Moitra and found that the regular Stenographer attached to Ms. Bandopadhyay, had not taken dictation of any of the judgments passed on 17th May, 2013 and 18th May, 2013.
67. Similarly, the Bench Clerk, Madhusudan Chakraborty had only deposed that he had received judgments in bulk from Ms. Bandopadhyay and had inserted the judgments in the Court Diary as well as in the cause list. He said nothing more. Mr. Kar, however, presumed that the judgments had been given to the Bench Clerk later, after Ms. Bandopadhyay had remitted the office of Additional District Judge, 1st Court, Siliguri, even though the Bench Clerk was not even asked whether the judgments were given to him by Ms. Ananya Bandopadhyay before or after she remitted charge of her office. After almost a year, the Bench Clerk might not have been able to recollect the date on which the judgments had been made over to him. However, if asked, he would surely have been able to say whether the judgments were given to him before or after the writ petitioner remitted office.
68. Moreover, the Bench Clerk said that the judgments were all given to him in a bunch. If so that bunch would include the judgments in Sessions Cases, where final judgment was pronounced in Court in the presence of the accused persons and the public prosecutor. From the statement of the Bench Clerk, it may, therefore, be deduced that the judgments were given to the Bench Clerk before Ms. Bandopadhyay remitted office.
69. In his report Mr. Ashutosh Kar observed that Shri Madhusudan Chakraborty could not give any satisfactory answer, as to why so many judgments were passed on 17th May, 2013 and 18th May, 2013 or who prepared those judgments. We are unable to understand how the Bench Clerk attached to Court could have explained why the Judge delivered so many judgments, or who prepared the judgments which were pronounced but not dictated in open Court.
70. Except for a bald complaint of a disgruntled Advocate and his incredible statement, fraught with inconsistencies, there was absolutely nothing to show that any judgments had been delivered or prepared or inserted into the records after the writ petitioner''s departure from Siliguri.
71. The initiation of disciplinary proceedings may be preceded by a preliminary enquiry, to decide whether disciplinary proceedings should be initiated or not. The object of a preliminary enquiry, is to assess the conduct and integrity of an employee and to ascertain whether a prima facie case exists for issuing a charge sheet to the employee to show cause.
72. As argued by Mr. Kishore Dutta, Senior Counsel, appearing on behalf of the High Court Administration, the enquiry which was conducted by Shri Asutosh Kar, Registrar (Administration) was a preliminary enquiry. The purpose of the preliminary enquiry was to ascertain whether a prima facie case existed to proceed against the Judicial Officer.
73. Mr. Dutta argued, and rightly, that the principles of natural justice have no application in case of a preliminary enquiry, which is an informal proceeding. The Officer against whom the preliminary enquiry is held, has no right of audience in such informal proceeding, since the findings in a preliminary enquiry do not affect the concerned Officer. No right of the Judicial Officer can be said to be infringed if opportunity of hearing is not afforded at this stage of preliminary enquiry.
74. Mr. Dutta next argued that a preliminary enquiry is not mandatory. It is for the Disciplinary Authority to decide whether or not to conduct a preliminary enquiry. Even if a departmental enquiry is initiated on the basis of the findings in a preliminary enquiry, the result of the preliminary enquiry is not to be relied upon for the purpose of the departmental enquiry. However, in the event, the Disciplinary Authority intends to rely upon the preliminary enquiry report or the materials or evidence collected in such preliminary enquiry before the Enquiry Officer conducting the departmental enquiry, the charged Officer will have to be furnished the report of the preliminary enquiry, and materials collected thereon.
75. Preliminary enquiries are fact finding enquiries and are not formal departmental enquiries. We are in full agreement with the view of Samaraditya Pal in the 3rd Edition of his book "Law relating to Public Service" to which reference was made by Mr. Dutta. Mr. Pal opined that "observance of prescribed rules or procedure or principles of natural justice could have the result of vitiating such enquiry, since its very nature demands non-transparency."
76. A preliminary enquiry does not require adherence to any prescribed rules or procedure. An employee against whom a preliminary enquiry is conducted may or may not be heard. Unlike in a departmental enquiry, the employee cannot insist on being heard at a preliminary enquiry, as a matter of right.
77. May be, as argued by Mr. Dutta, in the absence of Rules providing for preliminary enquiry, a preliminary enquiry was not mandatory and the High Court could have initiated disciplinary proceedings against Ms. Bandopadhyay on the basis of the complaint of Mr. Lohia, as argued by Mr. Dutta. However, the High Court in its wisdom did not do so, possibly because the High Court did not deem it appropriate to expose Ms. Bandopadhyay, a District and Sessions Judge, to the harassment, humiliation and mental trauma of an enquiry, without finding out whether there was any substance at all, in an apparently motivated complaint of a disgruntled Advocate.
78. Once the High Court decided to hold a preliminary enquiry, the preliminary enquiry had to be a meaningful preliminary enquiry, by an impartial officer and not a biased, prejudged, mechanical exercise, which was for all purposes, a farcical eyewash.
79. On Thursday, 20th March, at 4.30 P.M, that is, after Court hours, a meeting of the Administrative Committee of this Court, comprising the then Hon''ble Chief Justice and four Hon''ble Judges, none of whom are Judges of this High Court any longer, was held in the chamber of the then Hon''ble Chief Justice.
80. There were apparently 14 (fourteen) main items, 3 (three) additional items and a miscellaneous item, in the agenda for the said meeting, all of which were considered. Item No. 8 of the Agenda was "to consider the report dated 20/02/2014 submitted by the Registrar (Administration) in the matter of enquiry made by Shri K.L. Lohia, Advocate against Smt. Ananya Bandopadhyay, the then Additional District and Sessions Judge, 1st Court, Siliguri in the District of Darjeeling."
81. What was placed before the Administrative Committee was a biased, vindictive report of purported preliminary enquiry conducted by the writ petitioner in a writ petition, to the result of which the appointment of Ms. Bandopadhyay as District and Sessions Judge was subject.
82. Having initiated litigation, challenging the gradation list in which Ms. Bandopadhyay was placed above Mr. Kar in seniority, Mr. Kar was likely to have a personal interest in securing initiation of formal proceedings against Ms. Ananya Bandopadhyay and thereby putting her judicial career into jeopardy, so that he could have her out of his way. There was reasonable likelihood of bias of Mr. Kar from the inception of the preliminary enquiry.
83. In Union of India Vs. S.N. Chatterjee reported in 1981 (1) CLJ 305, cited by Mr. Mukherjee, a Division Bench of this Court held:
"In our view our learned brother was absolutely correct in holding that the test must be one of there being a real likelihood of bias because as and when on the facts and circumstances such a real likelihood is established, the bias has to be assumed as indicated by Viscount Cave. One may take note of the fact that the very same principle was reaffirmed by Lord Denning in the case of (3) Metropolitan Properties Co. (Ltd.) v. Lannon, (1969) 1 QB 577 when he said "there must be circumstances from which a reasonable man would think it likely or probable that the justice, or Chairman, as the case may be, would, or did favour one said unfairly at the expense of the other. The Court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The confidence is destroyed when right minded people go away thinking "The Judge was biased." This principle has been consistently approved by our Supreme Court not only in the case referred to and relied upon by our learned brother but also in the case of (4)
84. Mr. Dutta has rightly argued that apprehension of bias should be a real apprehension and not a fanciful apprehension. In support of his submission, he has cited
85. The perversity of the preliminary enquiry report of Mr. Kar evinces actual bias. It is unfortunate that the preliminary report should ex facie reflect glaring judicial dishonesty, or alternatively, utter incompetence of the maker of the report, which renders him unfit to be a Judicial Officer.
86. The Administrative Committee has proceeded on the basis of a vitiated report which has been summarized in a synopsis made by Mr. Kar himself, which is misleading and inconsistent with his own findings in the body of the report.
87. The finding in Serial No. 1 of the synopsis, that it was humanly impossible to deliver 22 cases in two days, was neither based on any statistics nor based on any facts, but merely a subjective and conjectural assessment and/or opinion of the Registrar (Administration), Mr. Ashutosh Kar, possibly based on his own standard. Moreover the finding proceeded on the erroneous assumption that all the 22 judgments, that had been delivered on those two days must have been made ready in two days. Statistics of disposals in the High Court, as also other Courts would show that disposal of 22 cases in two days is not at all an impossibility and there is often final disposal of more than 22 cases in a day.
88. Serial No. 2 of the synopsis is also misleading. The synopsis gives the impression that most of the cases disposed of on 16th, 17th and 18th May, 2013 were heard on those days which is factually not correct. Mr. Lohia''s case was last heard on 25th March, 2013. Mr. Kar has, in his report, himself observed, that hearing of a few cases which were disposed of on 16th, 17th and 18th May 2013, had been concluded on the same day.
89. Serial No. 3 of the synopsis is a perverse distortion of the statement of the Stenographer, Shri Partha Narayan Moitra. For reasons best known to himself, Mr. Kar quoted one sentence in the statement as recorded by him, out of context, but overlooked the statements to the effect that he had taken some judgments directly on the machine from mouth, prepared some judgments from "manuscripts" given to him by Ms. Bandyopadhyay and that he could not remember if all the cases had been prepared by him.
90. Serial No. 4 of the synopsis is patently conjectural. Even assuming that the judgments delivered on the last two days were not typed by the Court Stenographer, that does not necessarily lead to the conclusion that the judgments were prepared after she delivered charge as Additional and Sessions Judge, 1st Court, Siliguri. This finding is unsupported by any evidence at all, except the hearsay evidence of the complainant himself, based on what he allegedly heard from departmental personnel, whose names he has not revealed, who could not possibly have had knowledge of how, in what manner and when the judgments had been prepared.
91. Serial No. 5 of the synopsis is not based on any evidence whatsoever. The Bench Clerk had only stated that judgments were given to him in a bulk. The Bench Clerk had not stated that the judgements were given to him in a bulk after Ms. Bandopadhyay remitted office. In fact, the Bench Clerk was not even asked whether he had been given the judgments after or before the Judge remitted office.
92. The finding in Serial No. 6 of the synopsis does not relate to Sm. Bandyopadhyay. Haphazard entries in Court Diary or Cause List by the Bench Clerk cannot and does not lead to the inference that the Judge delivered judgments after she remitted office. In this context, it would be pertinent to refer to Mr. Kar''s own observation that the Bench Clerk was not co-operative and did not throw any light on the allegations in the complaint of Mr. Lohia.
93. The observations/findings in Serial No. 7 of the synopsis, that there was nothing in the Court''s computer, wherefrom it could be found that the judgments in question had been prepared by the Judge, by using that computer, gives the impression that there were other materials in the computer but not the judgments delivered on the last few days, whereas in fact there was nothing in the computer at all. Everything had been deleted before Ms. Bandopadhyay remitted office. Furthermore, the Registrar (Administration) should have known that all Judicial Officers are provided with laptop, computers. He did not inspect the laptop or get the laptop inspected.
94. The then Hon''ble Chief Justice had reposed faith and confidence in the integrity, impartiality and competence of his Registrar (Administration), a high ranking Judicial Officer of the rank of District Judge, and assigned to him the preliminary inquiry into Mr. Lohia''s complaint, not knowing that Mr. Kar was the writ petitioner in the writ petition, subject to the result of which, Ms. Bandyopadhyay had been appointed District and Sessions Judge. It was expected that the Registrar (Administration), being an experienced Judge would fairly and judiciously judge whether there was substance in the complaint. The Registrar (Administration) belied the trust and confidence reposed on him by the then Hon''ble Chief Justice, whose attention had not been drawn to the pending litigation.
95. The decision to direct the initiation of disciplinary proceedings was obviously prompted by Serial No. 8, that is, the concluding part of the synopsis, of Mr. Kar "for that there is no other alternative but to believe without any hesitation that there is substance in the complaint of Mr. Lohia, learned Advocate, Siliguri Bar Association". Such strong assertion by a Judicial Officer of the rank of District Judge obviously led the Administrative Committee to believe that there was clinching evidence to support the charge of Mr. Lohia. The concluding part of the report read with the synopsis gives the erroneous impression that the Bench Clerk had stated that the judgments had been given to him after Ms. Bandopadhyay had remitted office, and the Court Stenographer had stated that he had not taken dictation of any of the judgments in question. The Administrative Committee did not deem it necessary to scrutinize the report to examine if the evidence and the findings could lead to the conclusion at which the Registrar (Administration) had purportedly arrived.
96. The resolution of the Administrative Committee is as follows:
"Considered the report of enquiry.
Let disciplinary proceedings be initiated against the delinquent Officer. The Registrar (Judicial Service) will be the Enquiry Officer and the Registrar (Administration) the Presenting Officer. Let charges be framed against the delinquent Officer on the basis of the report of enquiry submitted."
97. The important issue of initiation of disciplinary proceedings against a Judicial Officer, on the basis of a preliminary investigation report, submitted by one of the writ petitioners to a writ petition to the final report of which, the appointment of the writ petitioner as District and Sessions Judge Uttar Dinajpur, was subject, was specially clubbed with several issues as will appear from the minutes of the said meeting of the Administrative Committee, set out hereinbelow:-
98. The Administrative Committee apparently did not consider the following factors:-
(i) There were apparent inconsistencies and absurdities in the complaint of Mr. Lohia as discussed earlier, which Mr. Kar had ignored.
(ii) Mr. Lohia had in his initial complaint stated that Ms. Bandyopadhyay delivered judgements in bulk on diverse dates in March, April and May, which would show that she did not deliver judgments in bulk only on the last two days prior to her departure.
(iii) In the complaint in writing, Mr. Lohia complained that judgments were delivered hurriedly, without application of mind, causing prejudice. It is for the appellate or revisional forum to examine the correctness of the judgements. Quick disposal of cases in bulk cannot and does not constitute any misconduct. With growing concern over pendency and accumulation of arrears, all Judges are expected to expedite disposal. Inability to write quick judgments of good quality may reflect inefficiency, but that cannot amount to misconduct. The standard of the judgments might affect grading in Annual Confidential Reports and prospects of further progress in career.
(iv) The purported definite finding of Mr. Kar of there being substance in the complaint is based on no other evidence except Mr. Lohia''s''own complaint and/or statement which is apparently motivated as discussed hereinbefore.
(v) The Bench Clerk never stated that the judgements were given to him after Ms. Bandyopadhyay remitted office. The Court Stenographer''s statement has been distorted.
(vi) The allegation of Mr. Lohia that judgments had been made ready after 20th May, 2013, is based on hearsay, from undisclosed employees of the department, who could not have had knowledge of what had happened in the Court room, or in the Judge''s chamber, or her residence. Departmental employees could only have informed Mr. Lohia if the records had been sent down to the Department from the Court room or not.
(vii) Delay by the ministerial staff of the Court to send down the records to the department after making necessary entries in the register does not mean that judgements were not at all delivered before the Judge remitted office.
(viii) Ms. Bandyopadhyay remitted office on 20th May, 2013 in the forenoon and joined as District and Sessions Judge of Uttar Dinajpur on the same day. After remitting charge of the office, Ms. Bandyopadhyay could neither have had access to the Court records, nor have had control over the staff attached to the Court of 1st Additional District Judge, Siliguri.
(ix) There is no evidence at all, of any collusion between Ms. Bandopadhyay and the ministerial staff attached to the concerned Court. The Registrar (Administration), Mr. Kar, has not suggested any reason why the staff attached to the Court of the 1st Additional District Judge, Siliguri should collude with Ms. Bandyopadhyay, to shield her at their own risk and peril, even after she remitted office and ceased to have any control over them.
99. As observed above, the meeting was held after 4.30 P.M. on Thursday, 20th March, 2014. The decision of the Administrative Committee was entirely based on a preliminary enquiry report, which is vitiated by apparent bias, perversity and mala fides. On the same day, simultaneously with the decision to initiate disciplinary action by issuance of a charge sheet, the Registrar (Judicial Service) was appointed Enquiry Officer and the Registrar (Administration) was appointed Presenting Officer.
100. The Registrar (Administration) however recused himself from the duty of representing the High Court Administration, in the departmental enquiry, as Presenting Officer, on the purported ground that he had conducted the preliminary enquiry, though there was no bar in law, preventing him from representing the High Court Administration as Presenting Officer, just because he had earlier, conducted preliminary enquiry.
101. It is not understood why Mr. Kar all of a sudden recused himself from representing the High Court Administration in the departmental enquiry, when he had no hesitation in conducting the preliminary enquiry against Ms. Bandopadhyay, though her appointment as District and Sessions Judge, Uttar Dinajpur was subject to the final result of a writ petition filed by him. Be that as it may, after Mr. Kar''s recusal, Mr. Subashis Dasgupta, Registrar (Inspection II) was appointed the Presenting Officer.
102. On Friday, 20th March, 2014 the then Hon''ble Chief Justice issued an order for circulation of the copies of the minutes of the meeting of the Administrative Committee held on 20th March, 2014 amongst all the Judges of this Court for obtaining their views. The order provided that if there were no views by 25th March, 2014, the decisions taken at the meeting of the Administrative Committee would be deemed to have been approved by the Full Court by circulation.
103. The Hon''ble Judges could not have had opportunity to peruse the minutes till after Court hours on Friday, assuming that the minutes were circulated within Friday. Saturday and Sunday were Court holidays. The Judges effectively had a day''s time to submit their objections, if any.
104. Moreover, only the minutes of the meeting of the Administrative Committee were circulated amongst the Judges. An important issue of disciplinary action against a Judicial Officer, being the eighth of about fourteen items in the Agenda, was clubbed in the minutes with decisions against which there could possibly be no objection from the Judges, such as the decision to constitute a Committee of Judges to consider assessment of units for disposal of cases by judicial officers, creation of posts of Principal Juvenile Justice Magistrates in each district, price of cause list, rectification of the date of birth of a Judicial Officer on the basis of his ICSE Certificate, construction of new buildings, supply of AIR Manual to Judicial Officers etc. Many of the Judges may not have noticed the decision to initiate disciplinary proceeding against Ms. Bandopadhyay, in the lengthy minutes of the meeting of the Administrative Committee. Furthermore the minutes did not reflect what was the complaint against Ms. Bandopadhyay.
105. The report of the Registrar (Administration) was not circulated along with the minutes of the meeting of the Administrative Committee. If any Judge wanted to inspect the records, that could only have been done after Court hours on Monday, 24th March, 2014. On 25th March, 2014, itself, the then Registrar General, of this Court, may be as directed, placed a note before the then Chief Justice, that there was no objection to the minutes of the meeting of the Administrative Committee held on 20th March, 2013 and an order was passed by the then Chief Justice recording that the decisions taken at the said meeting had been approved by the Full Court.
106. The approval of the Full Court was obtained by circulation. The Judges did not have sufficient time to go through the records and take a considered decision. There was no deliberation amongst the Judges on the decision of the Administrative Committee relating to Ms. Bandopadhyay. The Judges were not informed that the Registrar (Administration), who had conducted the preliminary enquiry, was a writ petitioner in the very same writ petition to the final result of which, the appointment of Ms. Bandopadhyay as District and Sessions Judge, was subject.
107. In any case no disciplinary proceedings can be initiated pursuant to a decision of the Administrative Committee, approved by the Full Court, which is based on a vitiated Preliminary Enquiry Report. The Judges of this Court were misled by the report of Mr. Kar to believe that Mr. Kar had found clinching materials against Ms. Bandopadhyay, wherefrom he came to the definite conclusion that there was no alternative but to believe that there was substance in Mr. Kar''s complaint. The judges could perhaps have not imagined, that Mr. Kar being a senior Judicial Officer, would take recourse to judicial dishonesty of blatant distortion of evidence.
108. Almost a year after the writ petitioner had remitted office as Additional District Judge, 1st Court, Siliguri and joined as District and Sessions Judge, Uttar Dinajpur, the writ petitioner was served with a charge-sheet captioned as Memorandum of Charge being Memo No. 999-RG dated 11th April, 2014, under cover of a letter bearing No. 1228/RG dated 6th May, 2014. The said Memorandum of Charge dated 11th April, 2014 is stated to have been issued pursuant to a direction of the High Court.
109. The Articles of Charge framed against the writ petitioner, as contained in the Statement of Articles of Charge, being Annexure I to the Memorandum dated 11th April, 2014, are set out hereinbelow:-
"Statement of Articles of Charge framed against Smt. Ananya Bandhopadhyay, erstwhile Additional District & Sessions Judge, Raiganj, Uttar Dinajpur.
ARTICLE OF CHARGE No. 1
Whereas, you, Smt. Ananya Bandhopadhyay while functioning as Additional District & Sessions Judge, 1st Court, Siliguri heard a considerable number of cases in the months of January, 2013, February, 2013, March, 2013 and laid the Judgement/Orders pending for a considerable period of time and passed the same later on by putting backdate and by incorporation in the concerned records in connivance with the then dealing assistants attached to Additional District Judge, 1st Court, Siliguri, District-Darjeeling without the knowledge of the Ld. Advocates appearing on behalf of the parties in those cases.
ARTICLE OF CHARGE No. 2
Whereas, Sri. K.L. Lohia, Ld. Advocate, Siliguri Bar Association, Siliguri Court sent a complaint to the Hon''ble High Court dated 17.6.2013 with the allegation that you by way of manipulating the case record as well as the concerned Court''s Diary and Court''s Cause Lists passed final order in Title Appeal No. 9(s)06/Misc. Judicial Case No. 12(7)11 in between Sri. Gajanand Agarwal & Ors. vs. Smt. Jana Devi @ Javetri Devi & Ors., sometime in the month of June, 2013 by giving a show as if it has been delivered on 17.5.2013, though actually this order was not delivered on that date and that had caused serious dereliction of duties as Judicial Officer and thereby you are unbecoming of a Judicial Officer.
ARTICLE OF CHARGE No. 3
Whereas, it reveals from the office record of the Copying Department, Siliguri Court that Ld. Advocate, Mr. K.L. Lohia and one Pintu Ghosh have applied for the certified copies of Title Appeal No. 9(s)06/Misc. Judicial Case No. 12(7)11 on 13.6.2013 and 12.6.2013, respectively showing basis of the claim of Mr. K.L. Lohia that the said order in the aforesaid case actually has not been delivered on 17.5.2013.
ARTICLE OF CHARGE No. 4
Whereas, Mr. K.L. Lohia, Ld. Advocate, Siliguri Bar Association has alleged that your acts and activities and mode of passing of Judgments/Orders have caused severe injustice to the litigants as most of them have lost their right of appeal within stipulated time and that has caused serious dereliction of duties as Judicial Officer and thereby your conduct is of unbecoming of a Judicial Officer.
ARTICLE OF CHARGE No. 5
Whereas, it reveals from the office records of Additional District Judge, Siliguri, 1st Court that you have passed the final order in Title Appeal No. 9(s)06/Misc. Case No. 12(7)11 in between Sri Gajanand Agarwal & Ors. vs. Smt. Jana Devi @ Javetri Devi & Ors. on 17.5.2013 but on its earlier day i.e. on 25.3.2013, you had fixed another date for passing the order but that date was overwritten/pen throughed for converting the same as the date 17.5.2013 and that has caused serious dereliction of duties as Judicial Officer and such conduct is unbecoming of a Judicial Officer.
ARTICLE OF CHARGE No. 6
Whereas, it has been revealed from the office records of Additional District Judge, Siliguri, 1st Court that you as the then Presiding Officer of the Court of Additional District & Sessions Judge, Siliguri, 1St Court has given a show as if you have delivered at least 22 (twenty two) Judgements on 17.5.2013 and 18.5.2013 for which no shorthand notebook or any record is made available during Preliminary Enquiry that you ever have taken any assistance from the stenographer, Sri Partha Narayan Maitra attached to the Court of District & Sessions Judge, 1st Court, Siliguri out of which the arguments of several cases have also shown to have been heard on the same day i.e. on 17.5.2013 and 18.5.2013, which has raised specific doubt about the actual date of hearing and mode of passing of the Judgments/Orders of those cases, which conduct is of unbecoming of a Judicial Officer due to causing dereliction in duties.
ARTICLE OF CHARGE No. 7
Whereas, it reveals from the office records of the Additional District Judge, Siliguri, 1st Court that with a view to fulfill your motive behind the game the Court''s Diary and Cause List have been considerably manipulated and disarranged on several dates including 25.3.2013, 17.5.2013 and 18.5.2013 without assigning any reason whatsoever, and for doing the same justifiably specific suspicion arises about the actual date and mode of passing of the Judgments/Orders, causing serious dereliction of duties as Judicial Officer by questioning honesty and transparency of a Judicial Officer, and thereby such of your conduct is of an unbecoming of a Judicial Officer.
ARTICLE OF CHARGE No. 8
Whereas, it has been found from the case records as well as from the Court''s Diary that you have delivered Judgments/Orders of the following 22 (twenty two) cases:
On 17.5.2013 and 18.5.2013 but the Stenographer attached to your Court, Sri Partha Narayan Maitra has stated that he has not taken any dictation from you either on 17.5.2013 or on 18.5.2013 or proximately thereinbefore of your tenure in the station as Additional District and Sessions Judge (while you delivered charge on 20.5.2013, 19th May, 2013 being Sunday) which has raised specific suspicion about the actual date and mode of passing of the Judgments/Orders by you, and that has caused serious dereliction of duties as Judicial Officer and such conduct, with a motive without caring of maintaining transparency, judicial honesty and discipline, is of unbecoming of a Judicial Officer.
ARTICLE OF CHARGE No. 9
Whereas, it has revealed from the office records of Additional District Judge, Siliguri, 1st Court and the statement of the then Bench Clerk, Sri. Madhusudan Chakraborty attached to that Court during the impugned tenure that all those Judgements/Orders of the cases are shown to have been delivered on 17.5.2013 and 18.5.2013, but considering the circumstances it is noticed to be practically not possible on the part of a Judicial Officer, who is holding Court on 18.5.2013 virtually as the last working day before delivering charge on 20.5.2014 to proceed for taking over charge of new assignment as the District Judge, Uttar Dinajpur.
ARTICLE OF CHARGE No. 10
Whereas, it has revealed from the office records of Additional District Judge, Siliguri, 1st Court that your last working day as Additional District & Sessions Judge, Siliguri is 18.5.2013 and 19.5.2013 is Sunday and on 20.5.2013 at 10:30 a.m. (forenoon) you have delivered charge as Additional District & Sessions Judge, Siliguri, and that has left sufficient ground to believe that the aforesaid Judgements/Orders have not been made ready and delivered on 17.5.2013 and 18.5.2013.
ARTICLE OF CHARGE No. 11
Whereas, the office records of Additional District Judge, Siliguri, 1st Court show that it is not possible by any Judicial Officer to dispose of the cases in the manner you have claimed to have been disposed of only in two last working days before delivery of charge of said Court of Additional District & Sessions Judge, Siliguri, 1st Court on 20.5.2013 at 10.30 a.m. (19.5.2013 being Sunday), that too without the help of Stenographer or any other competent person posted in the Court and thereby there is sufficient ground to believe that such of your conduct has logically indicated clear and unambiguous manipulation by non-delivery of judgment on the indicated date i.e. within time, rather by causing influence upon and in connivance with the then Bench Clerk or some others attached to that Court, you have done serious dereliction of duties by handling all those case records exceeding your jurisdiction nonetheless of delivery of charge of the Court of Additional District Judge, Siliguri, 1st Court by you are unbecoming of a Judicial Officer.
ARTICLE OF CHARGE No. 12
Whereas, it has revealed from the office records and from the concerned case records of the Additional District Judge, Siliguri, 1st Court that you have caused serious irregularities and manipulation while disposing of the cases, with full knowledge that you are violating the norms, the duties of the Judicial Officers, the judicial system, transparency, judicial discipline, honesty and decorum which has caused serious dereliction of duty and thereby you are unbecoming of a Judicial Officer."
110. Annexure II to the said Memorandum was a "statement of imputation for passing judgments/orders after manipulating the case record as well as Case Diary in respect of Article of Charges framed against Ms. Ananya Bandopadhyay, erstwhile Additional District and Sessions Judge, 1st Court, Siliguri......"
111. The language and tenor of the caption to Annexure II smacks of closed mind. It seems that the Authorities concerned had already formed an opinion against Ms. Bandopadhyay. The charge sheet read with the statement proceeds on the basis that Ms. Bandopadhyay passed judgments "after manipulating the case record as well as the Case Diary."
112. The statement being Annexure II is more or less a reproduction of the Preliminary Investigation Report of Mr. Ashutosh Kar, Registrar (Administration), which is vitiated by bias and perversity as discussed hereinbefore. The purported statement is a general running statement and not a specific charge wise statement, clearly correlating the alleged misconduct to a specific charge.
113. The Administrative Committee had resolved that charges be framed as per the report of the preliminary enquiry placed before the Administrative Committee at its meeting on 20th March, 2014. It was this resolution, which was considered to have been approved by the Full Court on 25th May, 2015, on the ground that there was no objection from any of the Judges, when the Judges in fact did not get effective opportunity to apply their minds to the decision.
114. The charges as set forth in the Memorandum dated 11th August, 2004, virtually replicated from the vitiated preliminary enquiry report of the Registrar (Administration) are repetitive, vague, devoid of particulars, illogical and misconceived. The errors of English in the preliminary report are also reflected in the charge sheet, rendering the charge sheet difficult, if not impossible to comprehend. The learned Single Judge has rightly commented that it is unbecoming of the High Court to issue a memorandum which not only does not adhere to English Grammar, but also betrays a closed mind.
115. None of the 12 Articles of Charge framed against Ms. Bandopadhyay are sustainable in law for the reasons discussed hereinafter.
ARTICLE OF CHARGE No. 1
"Whereas, you, Smt. Ananya Bandhopadhyay while functioning as Additional District & Sessions Judge, 1st Court, Siliguri heard a considerable number of cases in the months of January, 2013, February, 2013, March, 2013 and laid the Judgement/Orders pending for a considerable period of time and passed the same later on by putting backdate and by incorporation in the concerned records in connivance with the then dealing assistants attached to Additional District Judge, 1st Court, Siliguri, District-Darjeeling without the knowledge of the Ld. Advocates appearing on behalf of the parties in those cases."
116. The first article of charge is totally vague, devoid of any particulars, incapable of reply and is no charge in the eye of law. The charge does not indicate how many cases were heard in January, February and March, 2013. The charge does not specify which cases were heard in those months or the dates on which the cases were heard. The charge does not specify the cases in which judgments were kept pending or the length of time for which judgments were kept pending. It is a matter of record that Ms. Bandopadhyay remitted office on 20th May, 2013. The charge does not specify the misconduct committed by the Judicial Officer. There is no reference in the charge to any rule, regulation or directive specifying any time limit for conclusion of cases. It is not the charge that judgments were kept pending, after conclusion of hearing and in any case, it is nobody''s case that judgments were kept pending for any ulterior reason. The charge does not indicate when judgments and orders were passed. The charge does not indicate the specific judgments and orders which were allegedly passed by putting back date. The charge does not specify the Dealing Assistant with whom Ms. Bandopadhyay allegedly connived. The language and tenor of the charge sheet also demonstrates a totally closed mind. The concerned authority appears to have formed an opinion against Ms. Bandopadhyay. This charge is no charge in the eye of law and is liable to be set aside.
ARTICLE OF CHARGE No. 2
"Whereas, Sri. K.L. Lohia, Ld. Advocate, Siliguri Bar Association, Siliguri Court sent a complaint to the Hon''ble High Court dated 17.6.2013 with the allegation that you by way of manipulating the case record as well as the concerned Court''s Diary and Court''s Cause Lists passed final order in Title Appeal No. 9(s)06/Misc. Judicial Case No. 12(7)11 in between Sri. Gajanand Agarwal & Ors. vs. Smt. Jana Devi @ Javetri Devi & Ors., sometime in the month of June, 2013 by giving a show as if it has been delivered on 17.5.2013, though actually this order was not delivered on that date and that had caused serious dereliction of duties as Judicial Officer and thereby you are unbecoming of a Judicial Officer."
117. The second charge, replicated from the vitiated preliminary enquiry report of Mr. Kar, in atrocious incomprehensible English, is also totally absurd and vague, and therefore, not sustainable in law. There can be no charge against Ms. Bandopadhyay of passing any order in June, 2013 by manipulating the case record, the Court Diary and the Cause List, when she had remitted office on 20th May, 2013 and taken over charge as the District and Sessions Judge of a different district and thus had no access to the records of the Court of 1st Additional District Judge, Siliguri.
ARTICLE OF CHARGE No. 3
"Whereas, it reveals from the office record of the Copying Department, Siliguri Court that Ld. Advocate, Mr. K.L. Lohia and one Pintu Ghosh have applied for the certified copies of Title Appeal No. 9(s)06/Misc. Judicial Case No. 12(7)11 on 13.6.2013 and 12.6.2013, respectively showing basis of the claim of Mr. K.L. Lohia that the said order in the aforesaid case actually has not been delivered on 17.5.2013."
118. The third article of charge is vague, absurd, and illogical on its face, and in any case does not disclose any misconduct on the part of Ms. Bandopadhyay. The fact that Advocates should have applied for certified copy of an order in June 2013, does not logically lead to the inference that the order had not been passed on 17th May, 2013. The charge also demonstrates closed mind. The charge appears to have been predetermined. The language and tenor of this charge reveals formation of opinion that the judgement was not delivered on 17th May, 2013.
ARTICLE OF CHARGE No. 4
"Whereas, Mr. K.L. Lohia, Ld. Advocate, Siliguri Bar Association has alleged that your acts and activities and mode of passing of Judgments/Orders have caused severe injustice to the litigants as most of them have lost their right of appeal within stipulated time and that has caused serious dereliction of duties as Judicial Officer and thereby your conduct is of unbecoming of a Judicial Officer."
119. The fourth article of charge apart from being absolutely vague is totally absurd. It was unbecoming of the High Court to issue such a charge, after framing the immediately preceding charge on the basis that Mr. Lohia had applied for certified copy of the order dated 17th May, 2013 on 13th June, 2013. The charge smacks of total non application of mind or alternatively total ignorance of the period of limitation for filing an appeal against an order of a District Judge/Additional District Judge. In the report of the preliminary enquiry, on the basis of which, charges have been framed there is a finding that applications for certified copy of all the orders passed on 17th and 18th May, 2013 had been made in June, 2013, that is, well within the period of limitation. Moreover, Lohia, who made the complaint was, as observed above engaged in one case only.
ARTICLE OF CHARGE No. 5
"Whereas, it reveals from the office records of Additional District Judge, Siliguri, 1st Court that you have passed the final order in Title Appeal No. 9(s)06/Misc. Case No. 12(7)11 in between Sri Gajanand Agarwal & Ors. vs. Smt. Jana Devi @ Javetri Devi & Ors. on 17.5.2013 but on its earlier day i.e. on 25.3.2013, you had fixed another date for passing the order but that date was overwritten/pen throughed for converting the same as the date 17.5.2013 and that has caused serious dereliction of duties as Judicial Officer and such conduct is unbecoming of a Judicial Officer."
120. The fifth article of charge does not disclose any act of misconduct, not to speak of dereliction. Assuming the allegations in this Charge, and/or in support of this charge to be correct, there are no ingredients of dereliction of duty or of conduct unbecoming of a Judicial Officer, in the absence of reference to any provision of law, or any rule or regulation which debars a Judicial Officer from changing the date fixed for passing an order.
ARTICLE OF CHARGE No. 6
"Whereas, it has been revealed from the office records of Additional District Judge, Siliguri, 1st Court that you as the then Presiding Officer of the Court of Additional District & Sessions Judge, Siliguri, 1st Court has given a show as if you have delivered at least 22 (twenty two) Judgements on 17.5.2013 and 18.5.2013 for which no shorthand notebook or any record is made available during Preliminary Enquiry that you ever have taken any assistance from the stenographer, Sri Partha Narayan Maitra attached to the Court of District & Sessions Judge, 1st Court, Siliguri out of which the arguments of several cases have also shown to have been heard on the same day i.e. on 17.5.2013 and 18.5.2013, which has raised specific doubt about the actual date of hearing and mode of passing of the Judgments/Orders of those cases, which conduct is of unbecoming of a Judicial Officer due to causing dereliction in duties."
121. The sixth charge, is speculative, conjectural, incomprehensible, absolutely vague and, therefore incapable of reply. The Judge had no role in the preliminary enquiry. Preparing judgments and orders without taking the assistance of the Court Stenographer is not conduct unbecoming of a Judicial Officer. Such act cannot and does not constitute dereliction of duty.
ARTICLE OF CHARGE No. 7
"Whereas, it reveals from the office records of the Additional District Judge, Siliguri, 1st Court that with a view to fulfill your motive behind the game the Court''s Diary and Cause List have been considerably manipulated and disarranged on several dates including 25.3.2013, 17.5.2013 and 18.5.2013 without assigning any reason whatsoever, and for doing the same justifiably specific suspicion arises about the actual date and mode of passing of the Judgments/Orders, causing serious dereliction of duties as Judicial Officer by questioning honesty and transparency of a Judicial Officer, and thereby such of your conduct is of an unbecoming of a Judicial Officer."
122. The seventh charge is totally vague, incomprehensible and incapable of reply. The charge does not specify what was the ''game'' or what was Ms. Bandopadhyay''s motive behind that game. The Court Diary and Cause List are maintained and filled in by the Bench Clerk and not the Judge. Ex facie the charge is based on suspicion. This charge is also not sustainable in law.
ARTICLE OF CHARGE No. 8
Whereas, it has been found from the case records as well as from the Court''s Diary that you have delivered Judgments/Orders of the following 22 (twenty two) cases:
On 17.5.2013 and 18.5.2013 but the Stenographer attached to your Court, Sri Partha Narayan Maitra has stated that he has not taken any dictation from you either on 17.5.2013 or on 18.5.2013 or proximately thereinbefore of your tenure in the station as Additional District and Sessions Judge (while you delivered charge on 20.5.2013, 19th May, 2013 being Sunday) which has raised specific suspicion about the actual date and mode of passing of the Judgments/Orders by you, and that has caused serious dereliction of duties as Judicial Officer and such conduct, with a motive without caring of maintaining transparency, judicial honesty and discipline, is of unbecoming of a Judicial Officer.
123. There is no specific charge against Ms. Bandopadhyay under the caption Article of Charge No. 8. The charge based on suspicion, is also vitiated by vagueness, and is impossible to comprehend. This charge is also unsustainable in law and liable to be set aside.
ARTICLE OF CHARGE No. 9
"Whereas, it has revealed from the office records of Additional District Judge, Siliguri, 1st Court and the statement of the then Bench Clerk, Sri. Madhusudan Chakraborty attached to that Court during the impugned tenure that all those Judgements/Orders of the cases are shown to have been delivered on 17.5.2013 and 18.5.2013, but considering the circumstances it is noticed to be practically not possible on the part of a Judicial Officer, who is holding Court on 18.5.2013 virtually as the last working day before delivering charge on 20.5.2014 to proceed for taking over charge of new assignment as the District Judge, Uttar Dinajpur."
124. The ninth article of charge is also totally vague, incomprehensible, does not disclose any misconduct, and is incapable of being effectively replied. The charge is unsustainable.
ARTICLE OF CHARGE No. 10
"Whereas, it has revealed from the office records of Additional District Judge, Siliguri, 1st Court that your last working day as Additional District & Sessions Judge, Siliguri is 18.5.2013 and 19.5.2013 is Sunday and on 20.5.2013 at 10:30 a.m. (forenoon) you have delivered charge as Additional District & Sessions Judge, Siliguri, and that has left sufficient ground to believe that the aforesaid Judgements/Orders have not been made ready and delivered on 17.5.2013 and 18.5.2013."
125. The tenth article of charge is on its face illogical and absurd. The fact that 17th and 18th May, 2013 were the last working days, 19th May, 2013 was Sunday and Ms. Bandopadhyay handed over charge on 20th May, 2015 at 10.30 A.M cannot be ground to believe that judgments/orders had not been ready and delivered on 17th May, 2013 and 18th May, 2013. This charge is also unsustainable.
ARTICLE OF CHARGE No. 11
"Whereas, the office records of Additional District Judge, Siliguri, 1st Court show that it is not possible by any Judicial Officer to dispose of the cases in the manner you have claimed to have been disposed of only in two last working days before delivery of charge of said Court of Additional District & Sessions Judge, Siliguri, 1st Court on 20.5.2013 at 10.30 a.m. (19.5.2013 being Sunday), that too without the help of Stenographer or any other competent person posted in the Court and thereby there is sufficient ground to believe that such of your conduct has logically indicated clear and unambiguous manipulation by non-delivery of judgment on the indicated date i.e. within time, rather by causing influence upon and in connivance with the then Bench Clerk or some others attached to that Court, you have done serious dereliction of duties by handling all those case records exceeding your jurisdiction nonetheless of delivery of charge of the Court of Additional District Judge, Siliguri, 1st Court by you are unbecoming of a Judicial Officer."
126. The eleventh charge is totally speculative and vague, apart from being incomprehensible because of the atrocious English, replicated from a deplorable preliminary enquiry report. This charge is unsustainable. Moreover "handling of cases exceeding jurisdiction is not "dereliction" which means not doing deliberately what is part of one''s job.
ARTICLE OF CHARGE No. 12
"Whereas, it has revealed from the office records and from the concerned case records of the Additional District Judge, Siliguri, 1st Court that you have caused serious irregularities and manipulation while disposing of the cases, with full knowledge that you are violating the norms, the duties of the Judicial Officers, the judicial system, transparency, judicial discipline, honesty and decorum which has caused serious dereliction of duty and thereby you are unbecoming of a Judicial Officer."
127. The twelfth charge, which does not specify the irregularities alleged or the duties and norms allegedly breached, is totally vague and no charge in the eye of law. The mode and manner of the alleged manipulation is not disclosed. The alleged dereliction of duty is not disclosed.
128. The charges against Ms. Bandopadhyay and in particular Article of Charge Nos. 6 and 8 have apparently been issued by the Registrar General in disregard of Civil Rules and Orders of this High Court and in particular Rule 132 thereof set out hereinbelow:
"Final judicial orders in all classes of cases or proceedings or order requiring judicial discretion or discrimination shall be written or typed by the Presiding Judge himself."
129. There is no bar in law, rather it is a requirement of Rule 132 that final order be typed or written by the Judicial Officer himself. The Judicial Officers often prepare their orders and judgment in the laptops provided to them for their use.
130. The expression ''misconduct'' is not capable of any precise definition. The range of activities, not befitting the status, position and dignity of a public servant, in this case, a Judicial Officer, are so varied that it would be impossible to exhaustively enumerate those activities.
131. Moreover, standards of behaviour, conduct, courtesy, decorum, ethics and moral values vary from person to person. Behaviour perfectly acceptable to one, is not so to another. A candid opinion may be construed as impudence. What is ethical to one may not be ethical to another.
132. Failure to keep to undefined standards of moral or ethical behaviour cannot, by itself, constitute misconduct unless the conduct complained of is enumerated as misconduct in the Service Rules governing the Officer. This proposition finds support from the judgment of the Supreme Court in
133. In
134. In
135. ''Misconduct'' means doing of an act which is clearly forbidden under the prevalent rules, or alternatively deliberate failure to do something, which is required to be done under the Rules. The charge of misconduct has to be the charge of some positive act or positive conduct which would be incompatible with the express and implied terms of the Service Conditions.
136. The expression ''misconduct'', which has acquired specific connotation, cannot be construed to mean inefficiency or slackness, or even negligence simpliciter. It is something far more positive and certainly deliberate. It is the charge of intentional flouting of the express and implied terms of the Service Conditions.
137. Dereliction of duty, would in our view, definitely be misconduct. The meaning of ''dereliction'' as given in Concise Oxford English Dictionary (11th Edition) is "shameful failure to fulfill one''s obligation." As per Oxford Advanced Learner''s Dictionary (6th Edition), it is deliberate not doing of what one ought to do, specially when it is part of one''s job. A Judicial Officer, or for that matter, any public Officer and/or employee can be charged with dereliction of duty, when he/she has deliberately not done that, which he/she was required to do under the Rules. The allegations against Ms. Bandopadhyay do not make out any case of dereliction of duty on her part.
138. A Judicial Officer has to maintain the highest standards of integrity. A Judicial Officer is required to adjudicate disputes independently, impartially, as per his/her understanding of the law, in the context of the facts in issue. It would be conduct unbecoming of a Judicial Officer to favour one party to a litigation or to discriminate against another, whatever be the reason, whether it is personal affinity or animosity or material gain or any political, ideological, social, or religious pressures.
139. Before an act can be construed as conduct unbecoming of the Officer/employee, and held to be misconduct, that could render the Officer/employee liable to disciplinary proceedings, the Disciplinary Authority would prima facie, have to be satisfied that the concerned Officer/employee has deliberately done something which is either contrary to the Rules or is forbidden by the general law of the land.
140. Hurried disposal of a large number of cases, delivery of judgments in bulk, non-deliberate delay in disposal of cases, inadvertent errors, rectification of errors by overwriting, not availing the services of the Court Stenographer, can in no circumstances be conduct unbecoming of a Judicial Officer.
141. This Court cannot, but take judicial notice of the stark reality of varying standards of efficiency, knowledge, health, and devotion to duty of ministerial employees of Courts, not to speak of a propensity amongst many of them to give more importance to social commitments than the call of duty.
142. The question which irks this Court is, whether, a Judge, who has been provided with an official computer, which he/she has the skill to operate, is expected to just sit back idly and keep judgments and orders pending, because his/her Stenographer is either absent or unable to perform, or unwilling to work, when there is so much of concern all over the country over the delays in delivery of justice? The answer to this question cannot but be in the negative.
143. It would, indeed, be a sad day for the Judiciary if conscientious Judicial Officers who develop and use their technical skills, burn the midnight oil to type out their own judgments and work themselves out, depriving themselves of adequate recreation or rest, were to be suspected of the dishonesty, of procuring the judgments or getting them prepared elsewhere, and subjected to disciplinary proceedings, only because they had not depended on their Court Stenographers.
144. It is most unfortunate that overlooking its own Civil Rules and Orders (Rule 132 referred to above), the High Court should, proceed to punish a Judicial Officer of conduct unbecoming of her, on the basis of a wholly unsubstantiated and apparently motivated complaint of an unsuccessful lawyer, not supported, or rather, controverted by the Bench Clerk, only because the Judicial Officer is found not to have utilized the services of the Court Stenographer. Dispensing with the services of the Court Stenographer can neither constitute misconduct, nor even give rise to suspicion of misconduct, in the absence of any cogent, definite materials, which point to misconduct.
145. Even if a Judicial Officer uses the service of someone who knows shorthand and typing and/or is proficient in the use of computers, but is not a Court employee, to type out some of his/her judgments, even then, the Judicial Officer cannot be proceeded against for misconduct on the charge of conduct unbecoming of a Judicial Officer, in the absence of any rules and/or regulations prohibiting a Judicial Officer from doing so. Ofcourse, this is not a charge against Ms. Bandopadhyay. Our attention has not been drawn to any rule, which prohibits a Judicial Officer from obtaining the services of professional typists, Stenographers and computer operators or even law students interning under them.
146. The allegations against Ms. Bandopadhyay, except perhaps the vague, convoluted, apparently baseless and absurd, insinuation of passing an order in June, 2013, when she was no longer the 1st Additional District Judge, Siliguri, do not make out any case against Ms. Bandopadhyay of conduct unbecoming of a Judicial Officer.
147. As observed above, from the language and tenor of the show-cause notice, read with the statement of imputation of misconduct, particularly, the caption thereof, the alleged guilt of Ms. Bandopadhyay, appears to have been pre judged. The authority concerned apparently does not have an open mind.
148. In
"27. It is no doubt true that at the stage of show cause, the person proceeded against must be told the charges against him so that he can take his defence and prove his innocence. It is obvious that at that stage the authority issuing the charge- sheet, cannot, instead of telling him the charges, confront him with definite conclusions of his alleged guilt. If that is done, as has been done in this instant case, the entire proceeding initiated by the show cause notice gets vitiated by unfairness and bias and the subsequent proceedings become an idle ceremony.
28. Justice is rooted in confidence and justice is the goal of a quasi-judicial proceeding also. If the functioning of a quasi- judicial authority has to inspire confidence in the minds of those subjected to its jurisdiction, such authority must act with utmost fairness. Its fairness is obviously to be manifested by the language in which charges are couched and conveyed to the person proceeded against.
29. In the instant case from the underlined portion of the show-cause notice it is clear that the third respondent has demonstrated a totally closed mind at the stage of show-cause notice itself.
..................
32. Therefore, while issuing a show-cause notice, the authorities must take care to manifestly keep an open mind as they are to act fairly in adjudging the guilt or otherwise of the person proceeded against and specially when he has the power to take a punitive step against the person after giving him a show cause notice.
33. The principle that justice must not only be done but it must eminently appear to be done as well is equally applicable to quasi judicial proceeding if such a proceeding has to inspire confidence in the mind of those who are subject to it."
149. It is true that this Court in exercise of its power of judicial review under Article 226 of the Constitution cannot sit in appeal over the findings of a preliminary enquiry, or the decision of the Disciplinary Authority to initiate disciplinary proceedings.
150. However, the Court may examine the legality of the decision making process which led to an administrative decision to issue a charge-sheet. A decision to initiate disciplinary proceedings, without application of mind on the basis of perverse findings in a so called preliminary enquiry, vitiated by bias and perversity is ex facie arbitrary and cannot be sustained.
151. In
"The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination. Now what is the content and reach of this great equalising principle? It is a founding faith, to use the words of pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Art. 14 , and if it affects any matter relating to public employment, it is also violative of Art. 16 . Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality to treatment."
152. It is well settled that arbitrariness in executive/administrative action strikes at the root of Article 14 , because any action that is arbitrary must necessarily involve negation of equality. It is thus too late in the day to contend that an executive action shown to be arbitrary, is not judicially reviewable, as observed by the Supreme Court in A.L. Kalra Vs. The Project and Equipment Corporation of India Ltd. (supra) cited by Mr. Mukherjee.
153. In
"9. Administrative decisions in exercise of powers even conferred in subjective terms are to be made in good faith on relevant considerations. The courts inquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The standard of reasonableness to which the administrative body is required to conform may range from the court''s own opinion of what is reasonable to the criterion of what a reasonable body might have decided. The courts will find out whether conditions precedent to the formation of the opinion have a factual basis."
154. A preliminary enquiry may be an informal enquiry to find out whether there is prima facie substance in a complaint to warrant the initiation of formal proceedings. The formal rules of natural justice may not apply in the sense that an officer against whom a preliminary enquiry is conducted need not be informed of the specific complaint that has prompted such enquiry, or given a full fledged hearing, as a matter of right, along with all the components of an effective hearing, such as disclosure of materials collected against the officer, cross-examination of witnesses etc.
155. In
"In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Art. 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of Art. 311 and all the rights that protection implies as already indicated above. There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Art. 311 that the government servant is entitled to the protection of that Article."
156. In The Depot Manager, Andhra Pradesh State Road Transport Corporation, Medak Vs. Mohd. Ismail & Anr. reported in 1997 (1) LLJ 166 A.P. cited by Mr. Datta the Division Bench of the High Court of Andhra Pradesh held:
"12. A preliminary enquiry is of very informal character and the methods are likely to vary in accordance with the requirements of each case. The delinquent employees have no vested right in any form or procedure of holding preliminary enquiry. The object being the satisfaction of the officer concerned, the procedure of enquiry is wholly at the discretion of the officer holding the enquiry. After holding preliminary enquiry, the Disciplinary Authority need not record its satisfaction in writing nor is it required to give reasons for initiating the regular departmental enquiry. As already pointed out, a preliminary enquiry does not result either exoneration or punishment. Therefore it should be held that whatever be the finding in the preliminary enquiry, that will not affect any of the legal rights of the delinquent."
157. In
"14. Thus, a person empowered or required to conduct a preliminary investigation with a view to recommending or deciding whether a formal enquiry or hearing (which may lead to a binding and adverse decision) should take place, is not normally under any obligation to comply with the rules of fairness (Beetham v. Trinidad Cement Co.; Medical Board of Queensland v. Byme; Saskatchewan College of Physicians, ex P Samuels; Drummoyne, Re.) But he may be placed under such an obligation if his investigation is an integral part of a process which may terminate in action adverse to the interest of a person claiming to be heard before him. (Wiseman v. Borneman; All General Canada and Canadian Tabacoo Manufacturers'' Council, Re.)"
158. Unlike a regular disciplinary proceeding, hearing cannot be claimed as a matter of right in preliminary enquiries. At the stage of the preliminary enquiry, the concerned officer may or may not be heard. The Disciplinary Authority and/or the person conducting the preliminary enquiry would have the full discretion to decide whether the concerned officer should be heard.
159. Whether or not hearing would be expedient would depend on the facts and circumstances of the case, the nature of the complaint and the findings upon preliminary enquiry. In this case, proceedings have been prompted by the complaint of a disgruntled Advocate alleging that judgments shown to be delivered by Ms. Bandopadhyay had actually been prepared after Ms. Bandopadhyay remitted office.
160. The Registrar (Administration) examined the complainant, examined the Stenographer and the Bench Clerk attached to the Court and on the basis of the statement of the Stenographer that he had not taken dictation from the writ petitioner for about 10 days before 17th/18th May 2013, being the dates of the judgments and on the presumption that 22 cases could not be disposed of in two days, the Registrar (Administration) assumed that the judgments had not actually been delivered till after Ms. Bandopadhyay remitted office on 20th May 2013.
161. For the ends of justice the writ petitioner should have been asked how the judgments had been prepared. In the writ petition, there is an assertion that the judgments were typed out in the official laptop provided to the writ petitioner and the dates on which the respective files had been opened, have been given. Had the writ petitioner been heard, the findings might have been otherwise.
162. There can be no doubt that in the absence of rules, no employee has any vested right to any form of procedure of holding preliminary enquiry. The employee may or may not be given a hearing. Hearing cannot be claimed as of right. The judgment of the Supreme Court in Champaklal Chimanlal Shah Vs. Union of India, is not, however an authority for the proposition that preliminary enquiries should, as a rule, be conducted ex-parte in the absence of the concerned Officer.
163. None of the judgments cited on behalf of the High Court Administration are authority for the proposition that initiation of disciplinary action, without application of mind and without proper deliberation, on the basis of a perverse, biased, arbitrary report of a farcical preliminary enquiry, by an adversary in litigation cannot be interfered with by this Court, in exercise of its power of judicial review.
164. May be the High Court need not have conducted a preliminary enquiry at all, as argued by Mr. Datta. The High Court might have issued a charge sheet without making any preliminary enquiry. However, a decision having been taken to conduct a preliminary enquiry and such preliminary enquiry having been conducted, it is preposterous to argue that the High Court, which is ''State'' within the meaning of Article 14 of the Constitution of India and bound by the Fundamental Rights conferred under Part III of the Constitution of India including in particular, the Right to Equality under Articles 14 to 16 can conduct an unfair enquiry which is an eye wash just because it could have dispensed with a preliminary enquiry had it so chosen.
165. It is one thing to say that strict procedural rules of natural justice and fairness with all its components applicable in case of quasi-judicial enquiries will not apply to a preliminary enquiry. It is quite another thing to say that fairness has no application. This Court cannot possibly countenance an unfair enquiry, whether preliminary or final.
166. It is well settled that administrative decisions in exercise of powers, even if conferred in subjective terms, are to be made in good faith on relevant consideration. The Courts enquire whether a reasonable man could have come to the decision in question without misdirecting himself on the law or the facts in a material respect. The Courts will find out whether the conditions precedent to the formation of opinion have a factual basis. This proposition finds support from the judgment of the Supreme Court in
167. The decision to initiate disciplinary proceedings against Ms. Bandopadhyay is based on the opinion of the Registrar (Administration) which his unsupportable having regard to the materials on record. The Registrar (Administration) misdirected himself in law as well as facts in material respects as discussed above.
168. Mr. Datta, appearing on behalf of the High Court Administration submitted that a preliminary enquiry is an administrative act and not a judicial or quasi-judicial act. However, it is too late in the day to contend that administrative acts are beyond the ambit of judicial scrutiny. Even administrative acts must satisfy the test of reasonableness and are subject to judicial review.
169. It is true that this Court in exercise of power under Article 226 of the Constitution, does not ordinarily interfere with a show cause notice or a charge sheet. The rule against interference with a show-cause notice or a charge sheet, in proceedings under Article 226 of the Constitution of India is not absolute.
170. A Judicial Officer cannot be punished unless he/she is given a reasonable opportunity to show-cause. Reasonable opportunity implies that the charge should not be vague. Vagueness of charge is a fatal defect, which vitiates the entire proceedings.
171. What is vague has been explained by the Supreme Court in
172. It is well settled that a charge sheet should not be vague, but should be specific, as held by the Supreme Court in
173. It is true that charge in disciplinary proceedings need not be framed with the precision of a charge in criminal proceedings. At the same time the charge should not be vague or so general as to make it incapable of being traversed. A ground which is bad because it lacks precision and accuracy is to be ignored. In this case the language used in specifying the grounds for almost all the charges, particularly Articles of Charge Nos. 1, 4, 5, 6, 7, 8, 9, 10, 11 and 12, are so general that it does not permit the charged Officer to legitimately meet the charges against her, because the only answer she can give, is to say that she did not act as generally suggested.
174. In
"In view of the above, law can be summarised that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct."
175. Disciplinary proceedings cannot be initiated against an Officer on information which is vague and indefinite as held by the Supreme Court in
176. In State of Punjab Vs. V.K. Khanna (supra) the Supreme Court held that while it was true that justifiability of the charges at the stage of initiating a disciplinary proceeding could not be delved into by any Court pending enquiry, it was equally well settled that there was malice or malafide motive in the issuance of the charge sheet, or the authority concerned was so biased that the enquiry would be a mere farcical show, then law courts would be justified in interfering at the earliest stage, to avoid the harassment and humiliation of a public official.
177. Courts would also be justified in interfering with a charge sheet, which is totally vague and therefore incapable of effective reply, or a charge sheet which does not disclose misconduct.
178. The writ petitioner was required to submit her statement in support of her defence within 30 days from the date of receipt of the Memorandum of Charge. By the covering letter dated 16th May, 2014, the writ petitioner was directed to submit her written statement within 21st June, 2014.
179. However, long before the time granted to the writ petitioner to furnish her written statement of defence expired, the then Registrar (Judicial Service) was appointed Enquiry Officer. The Enquiry Officer issued a letter dated 6th June, 2014, directing the writ petitioner to appear before him on 4th July, 2014, at 11.30 A.M. to answer the Articles of Charge, with the threat to proceed with the enquiry ex parte failing her appearance on the date and time fixed.
180. In exercise of power conferred by the proviso to Article 309 of the Constitution of India and in supersession of all earlier notifications on the subject matter, the Governor, in consultation with the High Court framed the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007, hereinafter referred to as the 2007 Rules.
181. Some of the relevant provisions of the 2007 Rules are set out hereinbelow for your convenience:-
"10. Penalties. - The following penalties may, for good and sufficient reasons, be imposed on a Judicial Officer
(a) Minor penalties:
(i) censure;
(ii) withholding of increment of pay or promotion;
(iii) recovery from pay of the whole or part of any pecuniary loss caused to the State and/or properties in the custody or under the control of the Court concerned by negligence or breach of rules or orders provided that the loss or damage is quantified and charged for.
(b) Major penalties:
(i) reduction to a lower stage in the time scale of pay for a specified period with further direction as to whether or not the Judicial Officer will cam increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay;
(ii) reduction to a lower time scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Judicial Officer to the time scale of pay, grade, post or service from which he was reduced, with or without further direction regarding conditions of the restoration to the grade or post or service from which the Judicial Officer was reduced and his seniority and pay on such restoration to that grade, post or service;
(iii) compulsory retirement;
(iv) removal from service which shall not be a disqualification for future employment;
(v) dismissal from service which shall ordinarily be a disqualification for future employment;
Explanation. - ...............
11. Procedure for imposing major penalties. - (1) No order imposing any of the penalties specified in items (i) to (v) of clause (b) of rule 10, shall be made except after an enquiry held, as far as may be. in the manner provided in this rule.
(2) The Disciplinary authority shall draw up or cause to be drawn up-
(a) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(b) a statement of imputations of misconduct or misbehaviour in support of each articles of charge which shall contain-
(i) a statement of relevant facts including any admission or confession made by the Judicial Officer,
(ii) a list of documents by which and a list of witnesses by whom, the articles of charge are proposed to be substantiated.
(3) The Disciplinary authority shall deliver or cause to be delivered to the Judicial Officer a copy of the articles of charge and the statement of imputations of misconduct or misbehaviour prepared under clause (b) of sub-rule (2) and shall require the Judicial Officer to submit to the disciplinary authority within 30 (thirty) days a written statement of his defence and to state whether he desires to be heard in person.
(4) Where the Judicial Officer submits a written statement of his defence and the Disciplinary authority, having regard to the articles of charge and the written statement of defence thereto, is of the opinion that-
(a) any of the penalties specified in items (i) to (iii) of clause (a) of rule 10 shall be imposed, it may pass appropriate orders in the case;
(b) in any other penalties specified in rule 10, the Disciplinary authority shall appoint an Enquiring Officer, not being below the rank of a District Judge or an Additional District Judge for the purpose of holding an enquiry into the charges and forward to it--
(i) a copy of the articles of charge and the statement of imputations or misbehaviour,
(ii) a copy of the written statement of defence;
(iii) copies of the statement of witnesses, if any.
Note 1.--No Judicial Officer equal in rank shall be appointed as Enquiring Officer for holding enquiry against a Judicial Officer: Provided that in case of holding an enquiry against a District Judge where the Enquiring Officer may be of the same rank, such an Enquiring Officer shall be senior to him:
Provided further that in case a suitable senior officer to be appointed as Enquiring Officer for holding an enquiry against a District Judge in the opinion of the High Court is not available, the High Court may appoint an officer as the Enquiring Officer who shall be above the rank of the District Judge.
Note 2.--If the Enquiring Officer retires from service or is transferred from the station where he was posted at die time of his appointment as such or is otherwise unable to perform the duties as Enquiring Officer, another officer may be appointed in his place by the Disciplinary authority, who may be permitted to proceed with the enquiry from the stage at which the same has been left by the transferred Enquiring Officer or retired Enquiring Officer, as the case may be, or to hold the enquiry de novo.
(5) Where an enquiry against a Judicial Officer is directed, the concerned Judicial Officer shall appear in person before the Enquiring Officer of such day and at such time as he may, in writing, specify in this behalf or within such further lime as the Enquiring Officer may allow.
(6) The Disciplinary authority may appoint any Judicial Officer to present on its behalf the case in support of the articles of charge. The Judicial Officer against whom enquiry is being held may take the assistance of any other Judicial Officer to present the case on his behalf but he shall not engage a legal practitioner for the purpose, without the specific permission, in writing, of the Disciplinary authority.
(7) If the Judicial Officer who has admitted any of the articles of charge in his written statement of defence submitted to the Enquiring Officer, the enquiry shall be proceeded only in respect of those articles of charge which have not been admitted by the concerned Judicial Officer.
(8) .........."
182. Even before the writ petitioner could file her written statement, the Enquiry Officer called upon the writ petitioner to appear before him on 4th July, 2014, with a threat to proceed ex-parte with the enquiry, in the event, she did not turn up, in apparent contravention of the 2007 Rules, and in particular, Rule 11(4) thereof.
183. The 2007 Rules and in particular, Rule 11(2)(b)(i) thereof contemplates an opportunity of hearing to a Judicial Officer after the preliminary enquiry, before issuance of a charge sheet. In this case, no such opportunity was given to the writ petitioner.
184. Rule 11(2)(a) requires the Disciplinary Authority to draw up or cause to be drawn up, the subsistence of the imputations of misconduct or misbehaviour into definite and distinct articles of charge. Rule 11(2)(b) requires the Disciplinary Authority to draw up or cause to be drawn up a statement of imputation of misconduct or misbehaviour in support of each articles of charge. In view of Rule 11(2)(b)(i) a statement of imputation of misconduct or misbehaviour in support of each article of charge is to contain a statement of relevant facts, including any admission or confession made by the Judicial Officer. The question of admission or confession by the Judicial Officer can only arise, when an opportunity is given to the charged officer after preliminary investigation and/or before decision is taken to initiate disciplinary proceedings.
185. Furthermore, an enquiry might only be held, if upon consideration of the written statement of the charge sheeted Officer, the Disciplinary Authority is of the opinion that the charge sheeted Officer was prima facie liable to major punishment. No enquiry is necessary for imposing a minor penalty.
186. As argued by Mr. Mukherjee, formation of opinion upon consideration of reply of whether enquiry for imposing major penalty was at all necessary, was a condition precedent for appointment of Inquiry Officer.
187. In this case, however, not only was an Enquiry Officer appointed even before the petitioner could file her written statement, the Enquiry Officer also issued notice on the petitioner to appear, almost 15 days before the time to reply to the Charge Sheet had expired, with a threat to proceed ex-parte if she did not appear.
188. In Paragraph 6 of the Affidavit in Opposition, the Registrar General admitted non compliance of Rule 11(4) of the West Bengal Judicial Service (Classification, Control and Appeal) Rules 2007, but contended that such non compliance did not affect any right of the petitioner.
189. There can be no dispute that the 2007 Rules have the force of law. It is well settled that when statute requires a thing to be done in a particular manner, it is to be done in that manner at all. This proposition has been reiterated by the Supreme Court in
"25. A century ago, in Taylor v. Taylor, (1875) 1 Ch D 426 Jessel M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time. It was applied by the Privy Council, in
190. In
"34.....What bias means has already been dealt with by us earlier in this judgment, as such it does not require any further dilation but the factum of announcement has been taken note of as an illustration to a mindset viz.: the inquiry shall proceed irrespective of the reply - Is it an indication of a free and fair attitude towards the concerned officer? The answer cannot possibly be in the affirmative. It is well settled in Service Jurisprudence that the concerned authority has to apply its mind upon receipt of reply to the charge-sheet or show-cause as the case may be, as to whether a further inquiry is called for. In the event upon deliberations and due considerations it is in the affirmative - the inquiry follows but not otherwise and it is this part of Service Jurisprudence on which reliance was placed by Mr. Subramaniam and on that score, strongly criticised the conduct of the respondents here and accused them of being biased. We do find some justification in such a criticism upon consideration of the materials on record."
191. In
192. It is difficult to accept the contention of the Registrar General that, just because the charges were grave, the Disciplinary Authority could initiate disciplinary proceedings against the writ petitioner without inviting the writ petitioner to give a reply to the charge sheet. Such argument is against the dictum of the judgement of the Supreme Court in V.K. Khanna (supra).
193. In Vijay Singh Vs. State of Uttar Pradesh (supra), the Supreme Court reiterated that the procedure prescribed by statutory rules must strictly be adhered to.
194. After hearing was concluded and while judgment was pending this Court found that there was a judgment dated 2nd April, 2015 passed by a Division Bench of Nishita Mhatre and R.K. Bag, J.J., in MAT No. 2097 of 2014 with CAN No. 11742 of 2014 (Md. Ruknuddin Vs. The Hon''ble High Court at Calcutta & Ors.) where the Rule 11 of the 2007 had been considered. In Md. Ruknuddin''s case, the Division Bench found that there was no need to quash the enquiry, even though an Enquiry Officer had been appointed simultaneously with the issuance of charge-sheet.
195. The judgment in Md. Ruknuddin Vs. The Hon''ble High Court at Calcutta & Ors. (supra) was not cited on behalf of the High Court Administration. We have, however, considered the judgment in Md. Ruknuddin''s case, which is clearly distinguishable.
196. In Md. Ruknuddin''s case the Division Bench found:
(i) Under Rule 16 the aggrieved Judicial Officer could have appealed to the Governor if the Judicial Officer had been aggrieved by simultaneous appointment of Enquiry Officer along with issuance of charge-sheet, which the Judicial Officer did not do.
(ii) The Division Bench found that the attention of the Single Bench had not been drawn to Rule 16 which provided for appeal. Had the rule been pointed out to the Single Judge, the Single Judge would not have entertained the writ petition in view of the alternative remedy available to the Judicial Officer.
(iii) As per Rule 11(1) enquiry is only to be held in respect of charges under Clause (b) of Rule 10 which constitute major penalties only after an enquiry is held "as far as may be in the manner provided in this rule". The procedure would have to be adhered to, as far as possible, but there could be exceptions where it was not possible.
(iv) The Judicial Officer had not been able to demonstrate prejudice by reason of simultaneous appointment of Enquiry Officer. Simultaneous appointment of Enquiry Officer with issuance of charge-sheet would not mean that the written statement of defence filed by the appellant would not be considered by the Enquiry Officer.
(v) The Judicial Officer had not raised the issue regarding nonconformity of procedure followed by the disciplinary authority in his written statement.
197. In this case, the writ petition was entertained and directions issued for affidavits. The High Court Administration did not take the point of alternative remedy when the writ petition was moved before the Hon''ble Single Bench. On the other hand, the parties invited the earlier Division Bench, to decide the writ petition along with the appeal, whereupon directions were issued for affidavits. It is well-settled that once a writ petition is entertained, directions issued for affidavits, and the writ petition is kept pending for sometime, the writ petition should not be rejected on the technical ground of existence of an alternative remedy of appeal.
198. Furthermore, the Court may decline to entertain a writ petition on the ground of an alternative remedy when that alternative remedy is an equally efficacious alternative remedy. Rule 16(3) provides that the Governor shall, on receipt of the memorandum of appeal from the aggrieved Judicial Officer, forward the same to the High Court for its opinion and on receipt of the opinion from the High Court, the Governor would decide the appeal in accordance with the opinion duly forwarded by the High Court.
199. The High Court means the Chief Justice and all his companion Justices. In this case the petitioner did not have an efficacious remedy of appeal, since the Disciplinary proceedings have been initiated and charge-sheet issued pursuant to a decision of the Administrative Committee of Judges of this Court, approved by the Full Court by circulation. By the same resolution of the Administrative Committee, approved by Full Court by circulation, an Enquiry Officer was appointed. Rule 11(4) of the 2007 Rules, appears to have escaped the notice of the Administrative Committee. There could be no question of an appeal under Section 16 as the appeal would, in view of Section 16(3), have to be decided in accordance with the opinion of the same authority which took the action impugned in the appeal.
200. In Md. Ruknuddin''s case, the Division Bench observed that Rule 11(4) would have to be complied with, as far as possible. Compliance of the Rules was not sacrosanct. No prejudice was demonstrated in the written statement in Md. Ruknuddin''s case. In this case, no written statement has yet been filed.
201. In this case no reason has been given as to why compliance with Rule 11(4) was not possible. Moreover, the charges in this case are substantially different from the charges in Md. Ruknuddin''s case. The Judicial Officer in that case might not have been able to demonstrate prejudice, having regard to the nature of the charges which had to be refuted and having regard to the nature of the defence that was taken in the written statement.
202. The charges in this case pertain to the mode and manner of disposal of cases when Ms. Bandopadhyay was posted as Additional District and Sessions Judge, 1st Court, Siliguri. The charge sheet, as observed above was issued after a year. At the material time when the disciplinary proceedings were started, Ms. Bandopadhyay was posted at Uttar Dinajpur.
203. For an effective and strong defence in the enquiry, Ms. Bandopadhyay would have to adduce evidence oral as well as documentary. Such evidence would be available in Siliguri. Witnesses would have to come to depose from Siliguri. Moreover, commencement of enquiry would entail visits to Kolkata at the cost of judicial hours.
204. The High Court might have, on consideration of the reply of Ms. Bandopadhyay, to the Charge Sheet, decided not to initiate any enquiry at all against Ms. Bandopadhyay, in which case Ms. Bandopadhyay would have been saved the embarrassment, humiliation and harassment of arranging evidence and witnesses from Siliguri, who would have to be lawyers and Court employees and also saved the costs, loss of working hours etc. of travel to Siliguri and Kolkata from Raiganj.
205. Furthermore, in Md. Ruknuddin (supra) the Division Bench has referred to V.K. Khanna in the context of whether disciplinary proceedings can be commenced after acquittal in criminal proceedings but has not considered paragraph 34 of the said judgment of the Supreme Court, referred to hereinabove.
206. Ms. Bandopadhyay might not have complained against appointment of Enquiry Officer simpliciter. She might have exercised the option to file a response to the charge sheet with a prayer to the High Court, to first consider her response and then decide whether the Enquiry Officer should proceed with the enquiry. However, even before the time to respond had expired, the Enquiry Officer issued notice directing her to appear before him on the specified date and at the specified time, failing which the Enquiry Officer threatened to proceed with the enquiry ex-parte.
207. Under Article 235 of the Constitution of India, the High Court has control over the subordinate judiciary. In
208. In
"19. In Yoginath D. Bagde v. State of Maharashtra it was held: (SCC p. 766, para 48)
"48......The Presiding Officers of the Court cannot act as fugitives. They have also to face sometimes quarrelsome, unscrupulous and cantankerous litigants but they have to face them boldly without deviating from the right path. They are not expected to be overawed by such litigants or fall to their evil designs."
20. A subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure -contestants and lawyers breathing down his neck. If the fact that he renders a decision which is resented by a litigant or his lawyer were to expose him to such risk, it will sound the death knell of the institution. "Judge bashing" has become a favourite pastime of some people. There is growing tendency of maligning the reputation of judicial officers by disgruntled elements who fail to secure an order which they desire. For functioning of democracy, an independent judiciary, to dispense justice without fear and favour is paramount. Judiciary should not be reduced to the position of flies in the hands of wanton boys. (Vide: L.D. Jaikwal v. State of U.P., K.P. Tiwari v. State of M.P., Haridas Das v. Usha Rani Banik and Ajay Kumar Pandey, In re)
21. The subordinate judiciary works in the supervision of the High Court and it faces problems at the hands of unscrupulous litigants and lawyers, and for them "Judge bashing" becomes a favourable pastime. In case the High Court does not protect honest judicial officers, the survival of the judicial system would itself be in danger."
209. Unfortunately in this case, the High Court has proceeded on the basis of an Enquiry report, vitiated by bias and perversity, to assume that there was substance in the complaint of a disgruntled lawyer, overlooking patent inconsistencies and absurdities in the complaint. In our view, the decision to initiate disciplinary proceedings on the basis of the purported enquiry report, which was without proper application of mind cannot be sustained.
210. Moreover, as discussed above, all the Articles of Charges in the charge sheet are totally vague, devoid of particulars, incapable of effective reply, do not make out any specific act of misconduct on the part of the writ petitioner and reveal a closed mind. The charge sheet is liable to be quashed. Furthermore, the disciplinary proceedings have not been commenced and conducted in accordance with the mandatory procedure prescribed under the 2007 Rules, which have the force of law, and in particular, Rule 11(4)(b) thereof.
211. The written statement of the charged Officer if filed within the time stipulated would, under the said Rules, necessarily have to be considered by the High Court, that is the Chief Justice and His Companion Justices before initiation of enquiry, more so in view of ambiguity in the 2007 Rules, as to who would be the Disciplinary Authority.
212. The High Court being in control of the subordinate judiciary under Article 235 of the Constitution, the Full Court would have to take the decision of whether an enquiry should at all be conducted, upon consideration of the reply of the charged Officer.
213. The impugned action of the High Court authorities cannot, therefore, be sustained, for the reasons discussed above.
214. The learned Single Bench rightly passed the impugned order directing that no further action be taken in respect of the impugned action without the express previous leave of Court.
215. The impugned order of the learned Single Bench does not call for interference.
216. The appeal and connected stay application are dismissed.
217. The writ petition is allowed for the reasons discussed above.
218. The entire disciplinary proceedings including the impugned letter No. 1228-RG dated 16.05.2014, the impugned Memorandum of Charge No. 999-RG dated 11.04.2014 and the impugned letter dated 06.06.2014 are set aside and quashed.
219. The entire disciplinary proceedings having been set aside, the writ petitioner shall be entitled to all consequential benefits, including confirmation in service with effect from the date on which she would have been confirmed, but for the disciplinary proceedings.
220. Urgent Photostat certified copy, if applied for, be delivered to the learned counsel for the parties, upon compliance of all usual formalities.
Sahidullah Munshi, J.
I Agree.
