Arun Kumar Goel, J.@mdashThis writ petition has been filed for quashing the order dated 22.9.2000 issued by Respondent No. 1 (Annexure P-1), whereby he has been compulsorily retired from Himachal Pradesh Judicial Service, under Clause (vii) of Rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as, "the 1965 Rules"). He has also prayed for quashing Annexure P-4, the memorandum dated 1.10.1997, alongwith articles of charges etc. framed against him, as well as the inquiry report Annexure P-3 submitted by Respondent No. 5, as Inquiry Officer.
2. In the context of enquiry report it may be appropriate to notice here, that though there were as many as 12 charges on which enquiry was conducted, however, for the purpose of present writ petition relevant charges are No. I and IV, whereunder it has been held that these have been partly established; and charge Nos. V, VI, VII and IX, these have been held to be fully proved by the Inquiry Officer. Enquiry report submitted by Respondent No. 5 was accepted by Respondent No. 2, who recommended to Respondent No. 1 for imposing major penalty of compulsory retirement from service upon the Petitioner. This resulted in passing of the impugned order Annexure P-1.
3. In view of the aforesaid factual position, above six charges with finding being relevant for the purpose of present writ petition are being extracted hereinbelow:
Article of Charges
Article-I
That the said Shri Manoj Findings of the Inquiry Officer
Kumar Bansal while 51. Article-I proved partly to
functioning as Sub Judge- the extent that the delinquent
cum-Sub Divisional Judicial took help of police officials Lal
Magistrate, Sarkaghat during Chand, ASI and MHC Karam
the period from 22.1.1996 to Chand, Police Station
7.6.1997 had procured the Sarkaghat, for engaging three
presence of Shri Bhalkhu Ram, wheeler of PW-1 Shri Bhalkhu
Operator of Auto Rikshaw for carriage to and fro to
No. HP-05-0209 through the Government College,
police officials of the Police Bachowar of his wife Smt.
Station, Sarkaghat on Chandrika Bansal, working as
23.7.1996 in his chamber and a lecturer. Payment agreed
was Rs. 300/- per month
engaged under pressure his Auto thereafter it was disengaged when
Rikshaw for carrying his wife daily found irregular.
52. Shri Bhalkhu Ram was challaned by the police for rash driving and
from residence to Government de not stopping the vehicle on police
gree college, Bachowar, where she signal on which challan was fined
was posted as Lecturer and take Rs. 500/- by the delinquent on
her back in the evening. The 5.2.97. Fine was disproportionate to
operator was told that Rs. 300/- the offence, but Bhalkhu after
P.M. shall be paid to him by the pleading guilty paid the same and
said Shri Manoj Kumar Bansal and subsequently, handed over
Rs. 200/- per month shall be paid complaint to Shri D.P. Sharma,
by the police. When the said Auto Advocate, for onward submission,
Rikshaw operator got only Rs. to the Hon''ble High Court, but there
600/- for two months, he refused to is nothing that the delinquent
make available the said Auto procured the challan by directing
Rikshaw for the wife of said the police.
Shri Manoj Kumar Bansal after 31st 53. The charge is partly established.
October, 1996.
On 1.1.1997 when the said Shri
Manoj Kumar Bansal was on a
walk, he came across the said Auto
Rikshaw. He stopped the same and
enquired from its operator Bhalkhu
Ram as to why he was not making
available his Rikshaw for Mrs.
Bansal. On being told by the said
Shri Bhalkhu Ram that the
arrangement did not suit him, the
said Shri Manoj Kumar Bansal,
threatened him saying that his
Auto Rikshaw shall be challaned
and he will be fined. The said Shri
Bhalkhu Ram told Mr. Bansal that
the documents of his Auto
Rikshaw were in order. Ultimately,
said Auto Rikshaw was challaned
without the knowledge of its
operator and he was fined Rs. 500/-
on 5.2.1997 in the Court of said Shri
Manoj Kumar Bansal without
hearing him.
Thus, the said Shri Manoj Kumar
Bansal has abused his judicial pow-
ers and also acted in a manner 75. "It stands proved that Shri
becoming of a Judicial Officer. Surender Kumar, Process Server,
Article-IV used to work in the house of
That during the aforesaid period delinquent and sometime after 5
and while functioning in the p.m. had been going for service of
aforesaid office, the said Shri local summonses,
Manoj Kumar Bansal has been
deploying Shri Surinder Kumar
Process Server
and Smt. Sheela Devi, Safai
Karamchari at his residence for
menial duties, such as washing
utensils, floors, clothes etc. He had
also compelled the said Shri Surinder
and for engagement of three Kumar, PS to accompany him to his
wheeler for 2 months, fare was
paid by Smt. Chandrika Bansal and
native place at Rampur in July, 1996,
November, 1996 and March, 1997
under threat and had also been
taking menial work from him even
at his native place. Under threat and
pressure the said official was being
forced to apply for leave for such
trips. He also subjected said Surinder
Kumar and other Class IV officials to
gross-misbehaviour.
Thus, the said Shri Manoj Kumar
Bansal has been utilizing the services
of officials for his personal work and
harassing them unnecessarily by
misusing his official position and
power, which tantamounts to gross
misconduct. Such an act on his part 77. This charge is borne out by the
is also highly unbecoming of a Ju- documents. Telephone No. 52419
dicial Officer. was installed in the residence of
Article-V delinquent. Vide circular dated
That during the aforesaid period and 16.12.95 copy of which is
while functioning in the aforesaid Ex. PW16/A, the Hon''ble High Court
office, the said Shri Manoj Kumar had prescribed free calls limit of
Bansal has committed financial 5000 per annum to Sub Judge-cum-
irregularity by making 7876 judicial Magistrate 1st Class.
telephonic calls during the period EX. PW16/B to Ex. PW-16/ C are
between 16.1.1996 to 15.1.1997 from copies of telephone bills of this
his residential telephone and telephone for the aforesaid period
charging the entire bill to the Govt. of 16.1.1996 to 15.1.1997. All these
exchequer against the permissible bills were paid from the office con
limits of 5000 calls. tingency funds. Consequently, 2876
Thus, the said Shri Manoj Kumar calls which were in excess of free
Bansal has wrongfully charged the calls of 5000 were paid by the
bill of the excessive calls to the delinquent from the contingency
Government exchequer with a view funds. Defence of the delinquent
to having personal gain to that extent. was that he was never apprised by
Thus, the said Shri Manoj Kumar the office that had exceeded the
Bansal has committed grave finan- quota of 5000 calls and
cial irregularities and thereby mis-
conducted himself.
but his taking to Rampur thrice
in July, November, 1996 and then in
March, 1997 is not proved. Using
services of Sheela Kumari Safai
Karamchari for household work
also not proved."
in absence of intimation calls were
paid from office funds. Also it was
asserted that the delinquent joined
at Sarkaghat on 22.1.96 and cannot
be made to account for calls
between 16.1.1996 to 21.1.1996
during which period official
residence was locked. No person
from unoccupied residence could
have used the phone. Resultantly, it
stands proved that excessive calls of
2876 were paid by the delinquent
from Govt, funds and indulged
in financial irregularity.
78. "Charge established."
Article-VI
That during the aforesaid period
and while functioning in the afore-
said office, the said Shri Manoj 80. In support of the charge PW-16
Kumar Bansal had erroneously Surender Kumar, office Superin
dismissed CMA 174-H of 1995 tendent was examined who
on 7.3.1996, which was filed on the produced record of CMA 174-VI/95
ground that an application for stay titled Ram Lal v.
of execution under Order XXI, Rattan Chand. This
Rule 29 CPC application was dismissed by the
was pending and that if the stay delinquent on 7.3.96 vide order
as sought in the CMA was not copy of which is EX. PW16/I. Shri
granted, the purpose of the D.P. Sharma was the Counsel for
application filed under Order IX, the applicant who had moved
Rule 13 Code of Civil application for stay of the execution
Procedure shall be defeated. petition on ground that petition
The said Shri Bansal without going under Order IX, Rule 13
through the relevant record had CPC was filed
dismissed the CMA observing in by him for setting aside the ex parte
his order dated 7.3.1996 that the decree. That application was
relevant application had already dismissed on ground that ap
been dismissed. In fact that was not plication under Order XI, Rule 13
dismissed but issues were framed Code of Civil Procedure
therein by him on 28.2.1996, i.e. a was dismissed by the Court and
week earlier. there was no reason to stay the
Thus, the said Shri Manoj Kumar proceedings. On 7.3.1996 that
Bansal has been deciding the judi- application under Order IX, Rule 13
cial matters in a slip shod manner Code of Civil Procedure
without consulting the relevant was pending as on 28.2.1996 issues
records and, as such, he is guilty of were framed and case was
gross negligence in the discharge adjourned to 14.5.1996 for evidence
of his duties. of the applicant, as is evident from
order dated 28.2.1996 copy of which
is Ex. PW16/H. Resultantly,
it stands established that judicial
order was passed in haste without
consulting the record or calling the
office report.
81. "Charge established".
judicial impropriety and
thereby acted in a manner highly.
84. Prima-facie the delinquent
had no jurisdiction to grant bail in
rape case. The bail order on that
Article-VII.
That during the aforesaid period
and while functioning in the office,
the said Shri Manoj Kumar Bansal
had refused bail to the accused on
13.2.1997 in case titled
State v. Prem
Singh, under
Sections 376, 354, 506 Indian Penal Code moved
through Shri K.C. Verma Ad-
vocate. However, another
application which was moved
jointly by Shri K.C. Verma and Shri
R.S. Parmar, Advocates, in the
same case two days later, the said
Shri Manoj Kumar Bansal granted t
he bail on 15.2.97, although he had
no jurisdiction to grant bail in the
case. The bail so granted was later
cancelled by the Sessions Judge,
Mandi and further application for
bail filed before the Hon''ble High
Court was also dismissed.
Thus, the said Shri Manoj Kumar
Bansal had decided the application
without jurisdiction in order to fa-
vour Shri R.S. Parmar, Advocate,
and thereby committed grave
judicial impropriety and thereby 92. Plea of the delinquent that
acted in a manner highly provisions of Section 428 Code of
unbecoming of a Judicial Officer. Criminal Procedure were not
applicable to Special Act, is not
Article-IX. sustainable, because this basic pro
That during the aforesaid period vision was applicable to all the
and while functioning in the afore- criminal proceedings. Accused
said office, the said Shri Manoj Manoj Kumar was entitled for set
Kumar Bansal imprisoned one Shri off. But it has come in narration of
Manoj Kumar, u/s 34 of Surender Kumar, PW-16 that
Police Act, 1861 for 5 days. The sentence of Manoj Kumar was
defence Counsel sought the benefit suspended on 8.8.1996. Resultantly,
of set-off u/s 428 Code of no legal prejudice was caused to
Criminal Procedure as the accused Manoj Kumar convict, but the
had already remained in judicial delinquent acted illegally by not
custody for 14 days in this very granting set off u/s 428
case, but the reguest was turned Code of Criminal Procedure Hence
down injudiciously and illegally. charge proved.
Thus, the said Shri Manoj Kumar 93. "Charge established".
Bansal has committed grave judicial
impropriety and thereby acted in a
manner highly.
4. At the time of hearing, learned Counsel for the parties were not at variance that for disciplinary purpose Petitioner is governed by 1965 Rules. As such, enquiry was held under Rule 14 thereof and penalty has been imposed upon him under Clause (vii) of Rule 11 of these 1965 Rules.
5. When hearing in this writ petition commenced learned Senior Counsel appearing for Respondents 2 to 6 raised a preliminary objection regarding maintainability of this writ petition. According to him, Petitioner has an alternate and efficacious remedy in law under Rule 23 of 1965 Rules by way of filing appeal. Having not availed the same, this writ petition was liable to be dismissed on this short ground alone.
6. In this behalf he relied upon the decision of the Supreme Court in T. Lakshmi Narasimha Chari v. High Court of
7. This preliminary objection was contested by learned Senior Counsel appearing for the Petitioner. Per him, the impugned order on the recommendation of the High Court was admittedly passed by the Governor of Himachal Pradesh, so appeal would not lie against such an order. Further per him in Rule 22 of 1965 Rules, instead of President, it is read as Governor so far this case is concerned. Secondly even it is accepted for the sake of arguments that an appeal was competent, then there is no appellate authority prescribed before whom the impugned order passed by the Governor could be challenged. This is the effect of combined reading of both Rules i.e. 22 and 23 of the 1965 Rules, per Dr. Gupta. With a view to further advance the case of his client, Dr. Gupta also placed reliance on what is pleaded in para 100 of the rejoinder at page 288 of the paper book. Thus in the absence of any prescribed appellate authority in case of Petitioner, preliminary objection raised on behalf of Respondents 2 to 6 is liable to be rejected. For ready reference both Rules, i.e. 22 and 23 of the 1965 Rules are extracted hereinbelow:
22. Orders against which no appeal lies
Notwithstanding anything contained in this Part, no appeal shall lie against-
(i) any order made by the President;
(ii) any order of an interlocutory nature or of the nature of step-in- aid the final disposal of a disciplinary proceeding, other than an order of suspension;
(iii) any order passed by an inquiring authority in the course of an inquiry under Rule 14.
23. Orders against which appeal lies
Subject to the provisions of Rule 22 a Government servant may prefer an appeal against all or any of the following orders, namely:
(i) an order of suspension made or deemed to have been made under Rule 10;
(ii) an order imposing any of the penalties specified in Rule 11 whether made by the disciplinary authority or by any appellate or revising authority;
(iii) an order enhancing any penalty, imposed under Rule 11;
(iv) an order which -
(a)denies or varies to his disadvantage his pay, allowances, pension or other conditions of service as regulated by rules or by agreement; or
(b) interprets to his disadvantage the provisions of any such rule or agreement;
(v) an order-
(a) stopping him at the efficiency bar in the time-scale of pay on the ground of his unfitness to cross the bar;
(b) reverting him while officiating in a higher service, grade or post, to a lower service, grade or post, otherwise than as a penalty;
(c) reducing or withholding the pension or denying the maximum pension admissible to him under the Rules;
(d) Determining the subsistence and other allowances to be paid to him for the period of suspension or for the period during which he is deemed to be under suspension or for any portion thereof;
(e) Determining his pay and allowance -
(i) for the period of suspension, or
(ii) for the period from the date of his dismissal, removal or com- pulsory retirement from service, or from the date of his reduction of a lower service, grade, post, time-scale or stage in a time-scale of pay, to the date of his reinstatement or restoration to his service, grade or post; or
(f) determining whether or not the period from the date of his suspension or from the date of his dismissal, removal, compulsory retirement or reduction to a lower service, grade, post, time-scale or pay or stage in a time-scale of pay to the date of his reinstatement or restoration to his service, grade or post shall be treated as a period spent on duty for any purpose.
EXPLANATION. - In this rule -
(i) the expression ''Government servant'' includes a person who has ceased to be in Government service;
(ii) the expression ''pension'' includes additional pension, gratuity and any other retirement benefit.
8. So far plea based on the decision of the Supreme Court in the case T. Lakshmi Narasimha Chari v. High Court of A.P. and another, supra on behalf of Respondents 2 to 6 is concerned, Dr. Gupta submitted that this decision is wholly in-applicable in the peculiar facts and circumstances of that case. As according to him, under the relevant Rules governing Judicial Officers of the State of Andhra Pradesh in the matter of discipline they were governed by Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1963. Rule 21(2) of these rules reads as under:
21(2) An appeal from an order passed by the High Court shall lie to the Governor of Andhra Pradesh.
9. There being a statutory appeal prescribed against the order of the High Court to the Governor, and there being no such rule in the case of Petitioner in the present case, this objection of Respondents 2 to 6 is liable to be rejected.
10. After having considered the respective submissions urged on behalf of the parties, as well as for the reasons to be recorded hereinafter preliminary objection regarding the non-maintainability of the writ petition has no merit.
11. Arguments were concluded on 17.8.2004 and the matter was further heard on 13.10.2004. On the later date learned Senior Counsel appearing for Respondents 2 to 6 was specifically asked with reference to the 1965 Rules, as to who is the prescribed appellate authority in the case of the Petitioner, and also where no appellate authority is prescribed under the Rules how the matter should proceed. Learned Senior Counsel fairly stated that none has been prescribed. How the matter is to be processed, it is for this Court to decide, per Mr. Sharma. He, however, hastened to add that Petitioner can file an appeal to the Governor of Himachal Pradesh, who can remit back the case to the High Court for its re-examination. After referring to the decision of the Supreme Court in the aforesaid case of T. Lakshmi Narasimha Chari v. High Court of A.P. and another, he submitted that no doubt there is specific provision for an appeal against the decision of the High Court to the Governor of Andhra Pradesh still, there is no bar for the Governor in the present case (despite his having passed Annexure P-1), to remit back the matter to Respondent No. 2 for reconsideration of the whole case and then to make appropriate recommendations to him (the Governor) again in accordance with law, in case appeal was filed by the Petitioner.
12. Suffice it to say in this behalf that appellate authorities have been specified by Respondent No. 1 before whom the appeals would lie in case of different punishments those are imposed under the 1965 Rules. Admittedly in case of a litigant like Petitioner, no appellate authority has been prescribed. In this view of the matter, to say that the appeal would be maintainable before the Governor who had passed Annexure P-l on the recommendations of the High Court, will be creating an appellate authority which was never intended to be appointed by Respondent No. 1. In this behalf it may also be observed, that Respondent No. 1 cannot be said to be not aware of the fact of a situation as in the present case. The omission of not prescribing an appellate authority thus is not unintentional but appears to be with a purpose.
13. Another reason to take this view is that on a combined reading of Rules 22 and 23 supra, no appeal would lie against an order passed by the Governor, like Annexure P-1.
14. It may be appropriate to observe in this behalf that in the matter of appointment and disciplinary matters of Judicial Officers, opinion of the High Court has to have supremacy. A clear cut example of this is that recruitment at the entry point to the State Judicial Service is made by State Public Service Commission, a constitutional authority. Still one of the Members of the Selection Committee has to be a Judge of the High Court. His position is not like an ordinary expert called by the Commission as a Member of the Selection Committee. In the recommendations of the Public Service Commission, opinion of the Judge of the High Court is again sacrosanct and has to be followed by the Public Service Commission while assessing the merit of candidates who are called for interview and are recommended for appointment.
15. Further invariably opinion of the High Court is to be accepted by the appointing authority in the matters of disciplinary action recommended by the former in the case of a Judicial Officer like Petitioner. Order is issued by Respondent No. l in the name of the Governor of Himachal Pradesh after recommendations of the High Court have been accepted. Therefore, appellate authority in case of a litigant like Petitioner has rightly not been prescribed.
16. So far plea of Mr. Rajiv Sharma based on the decision of Supreme Court in of T. Lakshmi Narasimha Chari v. High Court of A.P. and Anr. supra is concerned, suffice it to say that it is without merit. Because there are Rules, i.e. Andhra Pradesh Civil Services (Classification Control and Appeal) Rules, 1963 and there is a specific provision to maintain an appeal against the decision of the High Court of Andhra Pradesh to the Governor of that State.
17. Even if it was held that appeal was maintainable as was urged by Mr. Rajiv Sharma on behalf of Respondent No. 2, there is nothing on record placed by this Respondent to show what was recommendation made by Respondent No. 2 after receipt of the reply to show cause notice. Show cause notice is Annexure P-6 and reply given by the Petitioner to it is Annexure P-7. Appeal could be maintained against an order when it contained some reasons. Annexure P-1, is in the following terms and it gives no reason:
The Governor, Himachal Pradesh, on the recommendation of Himachal Pradesh High Court, is pleased to order the compulsory retirement of Shri Manoj Kumar Bansal, a Member of the Himachal Pradesh Judicial Service under Clause (vii) of Rule 11 of the CCS (CCA) Rules, 1965 with immediate effect in the public interest.
18. Thus on what ground the impugned order could be challenged, learned Counsel for Respondent No. 2 was unable to point out anything. Even otherwise in a case of the present nature, it cannot be said that right of appeal is absolute, that bars this writ. How filing of appeal would have been an efficacious except for pointing out that the same should have been filed with the Governor, who could have remitted the matter back to Respondent No. 2, learned Counsel appearing for this Respondent was not in a position to satisfy the Court.
19. Before proceeding further in this case it may be appropriate to sound a word of caution so far scope of judicial review in the matter relating to the cases where orders like Annexure P-1 are passed as a consequence of departmental enquiry are concerned; ordinarily in a petition under Article 226 of the Constitution of India, High Court does not sit as a Court of appeal so as to scan the evidence that was before the Inquiry Officer. Scope of judicial review is narrow. It is aimed to ensure that rules of procedure regarding the enquiry are followed in their letter and spirit. Further, it is also to be seen that a reasonable and fair opportunity is afforded to a delinquent like the Petitioner during the course of such enquiry in the matter of cross-examination of witnesses, as well as leading evidence etc. It may be added here that principles of natural justice and fair play are also to be followed during such enquiry. Further, rigors of law of evidence, as well as the doctrine of strict proof are also not attracted in the case of a departmental enquiry as in the present case. But High Court is not debarred in a given case, if it comes to the conclusion that on the basis of evidence produced by the parties before Inquiry Officer, if it is made out that the charges as alleged against the delinquent officer are not proved on the basis of the evidence on record. Keeping in view these limitations, charge wise material will be dealt with hereinbelow.
20. Now coming to the submissions of Dr. Gupta regarding impugned order Annexure P-1 as well as Annexures P-4 and 3 being liable to be quashed, he referred to the findings of the Inquiry Officer on the so called partly and fully proved charges, as held by him, (the Inquiry Officer).
21. Charge No. I stands proved partly to the extent that the Petitioner took the help of police officials Lal Chand, ASI and MHC Karam Chand, Police Station, Sarkaghat, for engaging three wheeler of PW-1 Bhalkhu Ram. Payment agreed was Rs. 300/- per month and for engagement of three wheeler for two months, fare was admittedly paid by the wife of the Petitioner, when it was dis-engaged because of irregularity.
22. Dr. Gupta placed reliance on the statements of both these police officials and submitted that the conclusions arrived at against his client holding this charge as partly proved are not correct. He pointed out that agreed fare was Rs. 300/- per month, which has been admittedly paid by the wife of the Petitioner and thereafter the services of PW-1 were discontinued. However, per him, it would have been a totally different situation, if it was established during enquiry that besides Rs. 300/- per month was payable by the Petitioner and, remaining Rs. 200/- was payable by the police. A reading of the statements of both these police officials clearly indicates that there was no evidence worth the name regarding non-payment of agreed charges or any part of it being payable by the police. No doubt Bhalkhu Ram makes a grievance of his having been pressurized by the police officials in the Chamber of the Petitioner for transportation of his wife from his residence to the place of her employment. He has an axe to grind against the Petitioner. After his discontinuation as per Bhalkhu Ram, he was challaned under the Motor Vehicles Act. He has been condemned on this aspect by the Inquiry Officer himself in paragraph 46 of the enquiry report. In this behalf so far fine part is concerned, Dr. Gupta by referring to the violations committed by Bhalkhu Ram, Auto Rickshaw driver, he was challaned firstly u/s 184 of the Motor Vehicles Act and under this Section punishment of six months or fine of Rs. 1,000/- for first offence and imprisonment for a term which may be extended to two years or fine of Rs. 2,000 or with both for second or subsequent offence, is there. He was also challaned u/s 132(1)(a) of the Motor Vehicles Act and such offence is punishable u/s 177 of the Motor Vehicles Act with fine of Rs. 100/- for the first offence and fine of Rs. 300/- for any second or subsequent offence. In this view of the matter it cannot be said that the fine imposed on PW-1 Bhalkhu Ram upon 10.3.1997 was either excessive or penal in nature. Observation that fine was being disproportionate, is perverse on the face of it. Further, there was no charge qua the fine being disproportionate. Additionally, Bhalkhu Ram accepted this finding without any demur, otherwise he had a remedy in law to have challenged the same. Therefore, this observation made in para 52 of the enquiry report is unwarranted.
23. Complaint was handed over by Bhalkhu Ram to Shri D.P. Sharma, Advocate, for being submitted to High Court. On this aspect the matter will be dealt with hereinbelow while dealing with the submissions of Dr. Gupta regarding all complaints were being handed over to the said Advocate, as if was appointed as an ''Ombudsman'' by the High Court. In this view of the matter, finding that this charge stood partly proved is not correct, based on no evidence and its acceptance by Respondent No. 2 cannot be held upheld. Ordered accordingly.
24. Now coming to Charge No. IV. Under this charge Respondent No. 5 has again come to the conclusion that Surender Kumar, Process Server, used to work in the house of Petitioner and for some time after 5.00 p.m. had been going for service of local summonses. Keeping in view the nature of the charge as also materials on record to prove it, the question that arises is whether in the circumstances of this case Respondent No. 2 was justified to have recommended the compulsory retirement of the Petitioner from services. Answer, in my considered view would be, No. This is not a charge of such a grave nature so as to have been made basis of the recommendation made by the High Court resulting in issuance of Annexure P-1, by Respondent No. 1.
25. Charge No. V deals with financial irregularities having been committed by the Petitioner in the use of telephone No. 52419 installed at his residence.
26. According to Respondent No. 2, telephone could be used by the Petitioner in terms of circular dated 16.12.1995, copy whereof has been placed in this petition as Annexure P-12. For ready reference this is extracted hereinbelow:
From
The Registrar,
High Court of Himachal Pradesh,
Shimla-1.
To
All the Judicial Officers in the State of Himachal Pradesh.
Subject: Providing of telephone facility with STD to all the Judicial Officers in the State of Himachal Pradesh.
(Emphasis supplied)
Sir,
I am directed to say that Hon''ble the Chief Justice and Hon''ble Judges of the High Court of Himachal Pradesh have been pleased to approve that telephone facility in the offices as well as residences be provided to all the Judicial Officers in the State with STD facility.
The STD facility at the residences of the Judicial Officers shall be subject to the following limits:
(Emphasis supplied)
(a) District and Sessions Judges. No limit.
(b) Additional District and Sessions Judges. 9000 calls per annum
(c) Senior Sub Judges-cum-Chief Judicial
Magistrates. 7500 calls per annum
(d) Other Judicial Officers. 5000 calls per annum.
The above limits of calls shall not apply to the telephones in the offices of the above Judicial Officers. The officers who are not provided with the facilities of telephones at their residences/offices may make suitable reference in this regard to the undersigned. Others will take follow up action within the scope of the approval of this Court.
Yours faithfully,
Sd/- (M.R. Verma),
Registrar
27. Dr. Gupta, learned Senior Counsel appearing for the Petitioner submitted that limit of STD facility at the residence of the Petitioner was subject to the limit of 5000 calls per annum. While questioning the findings recorded by the Inquiry Officer under this charge and accepted by Respondent No. 2, Dr. Gupta submitted, that when High Court issued Annexure P-12, it was well aware as to what is meant by STD calls and the extent of the this facility which a Judicial Officer like Petitioner was entitled to. Further according to him in case STD calls are made from the residence telephone by a Judicial Officer like the Petitioner, the same should be within the limit of 5000 calls per annum. However no limit is prescribed so far local calls are concerned. Alternatively, Dr. Gupta pointed out that, benefit of free calls is also allowed to a user every month. Per him, period taken is 16.1.1996 to 15.2.1997. It is admitted case of the parties that the Petitioner occupied the residence on 7/8.2.1997. What was the number of calls made between 16.1.1996 to 7/8.2.1997, there is no evidence in this behalf. In case Respondent No. 2 wanted this charge to be established it was incumbent as a matter of fair play and justice that necessary bills of all the calls should have been placed on record. That having not been done, finding of the Inquiry Officer accepted by Respondent No. 2 on Charge No. V cannot be sustained in any situation.
28. Faced with this situation, Mr. Sharma on this charge on behalf of Respondent No. 2. urged that this Court need not go into these bills. According to him, this is not a ground taken in the writ petition, and it is thus liable to be ignored. He however fairly stated that he cannot travel beyond what is contained in Annexure P-12, which has been admittedly issued by his client putting limit on the use of telephone so far STD calls by a Judicial Officer like Petitioner, from at his residence is concerned.
29. In the absence of any evidence on record and also keeping in view the fact that no limit having been prescribed regarding local calls from the residence of a Judicial Officer like the Petitioner, it can safely be said that this charge also does not justify the recommendation of Respondent No. 2 for compulsory retirement of Petitioner.
30. Another reason to take this view is, that under Clause (iii) of Rule 11 of the 1965 Rules, recovery could be made from the Petitioner if the so call excessive calls were made by him (the Petitioner). For ready reference Clause (iii) of Rule 11 is extracted hereinbelow:
Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders.
Regarding recovery aspect under Clause (iii) of Rule 11 supra, Respondent No. 2 ought to have had recourse to it. For taking this view reliance is being placed on decision of Supreme Court in
31. Charge Nos. VI, VII and IX pertain to the judicial improprieties having been committed by the Petitioner in the discharge of his official duty as a Judicial Officer.
32. Charge No. VI pertains to dismissal of application under Order IX, Rule 13 of the CPC on 7.3.1996. Shri D.P. Sharma was the Counsel for the applicant. Grievance was not made by the litigant, but is made by the Counsel. According to Dr. Gupta, the said order was recalled and mistake was rectified. Who was prejudiced, if at all it can be said there is any, the litigant, and not the Counsel. This error was bona fide.
33. Suffice it to say in this behalf that no doubt application was pending and issues had been framed on 28.2.1996. As such, dismissal of stay of application under Order XXI, Rule 29 of the CPC could not have been ordered on the ground of rejection of such application. At this stage, it may be appropriate to observe here that it was not disputed at the time of hearing that this order of 7.3.1996 was corrected. Again who should have been aggrieved, at least not the Counsel, of course unless he had some personal stake in the litigation. In these circumstances role of Shri D.P. Sharma, Advocate, who is the complainant of this charge assumes significance.
34. So far Charge No. VII about rejection of application for the grant of bail to Prem Singh having been filed by Shri K.C. Verma, Advocate and its subsequently being allowed when Shri K.C. Verma alongwith Shri R.S. Parmar, Advocate is concerned, by no stretch of imagination it can be said that it was a favour shown to Shri R.S. Parmar, Advocate. This was the Article of Charge No. VII. However, it is not the finding of the Inquiry Officer on Charge No. VII, that some favour was shown to Shri R.S. Parmar, Advocate. So far having acted without jurisdiction is concerned, grant of bail was set aside by the learned Sessions Judge, Mandi. Finding recorded by the Inquiry Officer that this charge stood proved against the Petitioner is not correct. It hardly needs to be reiterated in this behalf that in a given case if it is made out that any undue favour to a particular lawyer was shown, it is something serious, and may not call for any mercy to be shown to the officer concerned. Whereas finding recorded by the Inquiry Officer in paragraph 84 only speaks of Petitioner having no jurisdiction to have granted bail in a rape case. In the next breath Inquiry Officer has held that the bail order on that ground was subsequently rejected by the learned Sessions Judge, Mandi. How favour was shown to Shri R.S. Parmar, Advocate alone, learned Senior Counsel for Respondent No. 2 was not in a position to satisfy the Court.
35. Now coming to Charge No. IX. In this case Article of charge pertains to the Petitioner having imprisoned one Manoj Kumar under Police Act for five days, though he was in judicial custody for 14 days. Thus benefit of Section 428 of the Code of Criminal Procedure having been claimed, was not granted. At the time of hearing, it was not disputed that punishment was imposed on 8.8.1996 and it was suspended on that very day. Manoj Kumar did avail the remedy available to him under law against this order. There is material on record to this effect. Even otherwise a wrong order as in the present case cannot always be termed to be an act of misconduct/impropriety. Statement of PW-16 from the inquiry file shows that said Manoj Kumar did avail the remedy available to him in law and his revision was dismissed. In this view to say that non-extension of the benefit available to him u/s 428 of the Code of Criminal Procedure by the Petitioner, is an act of misconduct/impropriety calling for his removal from services, cannot be justified either in law or otherwise. At best it can be said to be an illegal act.
36. Whether any misconduct/impropriety can be said to have been committed by the Petitioner under Charge Nos. VI, VII and IX justifying his removal from service, answer would be in the negative. For taking this view reliance is being placed on the decision of this Court in Criminal Revision No. 48 of 1992, titled as Court on its own motion In Re: Ashwani Kumar Jolly v. State of Himachal Pradesh, decided on 20.8.1992. What was held in that case and has bearing on this case, is extracted hereinbelow:
In view of the above discussion, this Court has no hesitation to hold that the order dated 25th May, 1992 passed by the Chief Judicial Magistrate, Shimla, is without jurisdiction and deserves to be set aside. Besides his having no jurisdiction to grant bail, the manner in which the bail has been granted without considering the gravity of the offence, the background in which the earlier, as many as four, bail applications were either withdrawn or rejected by the higher Courts of competent jurisdiction, only a couple of days before, it is established that the Chief Judicial Magistrate, Shimla, has not acted with restrained and circumspection and permitted Ashwani Kumar Jolly to abuse the process of the Court. The background given hereinabove in which the bail order was passed by the Chief Judicial Magistrate further makes an impression that Ashwani Kumar Jolly has successfully avoided one Judge or selected another to secure the bail order. Had the Chief Judical Magistrate, Shimla, cared to peruse the police record, he would have come to know about the earlier successive bail applications and their fate and he might, not have passed the order releasing Ashwani Kumar Jolly on bail. Judicial discipline, propriety and comity demanded that the Chief Judicial Magistrate should not have passed the bail order whereby he had, in fact, reversed the earlier order rejecting the anticipatory bail passed by the higher Court, that is, the Additional Sessions Judge (I), Shimila, only four days before. For coming to this conclusion, this Court has relied upon the observations made by Justice Ahmadi, J in
In the result, the revision petition is allowed. The order dated 25th May, 1992 passed by the Chief Judicial Magistrate, Shimla, is set aside. This Court has restrained itself from making any observation or taking any action against Ashwani Kumar Jolly for not attending this Court in person despite specific directions.
37. In Criminal Revision No. 40 of 2000, Court on its own motion in re: Khushal Singh v. State of Himachal Pradesh and Ors. decided on 8.8.2001. where Chief Judicial Magistrate had granted bail for offences under Sections 392 and 302 of the Indian Penal Code, what was held and is relevant for the decision of this case is extracted hereinbelow:
9. Be it stated that once it was shown to the learned Magistrate that the bail applications u/s 439, Code of Criminal Procedure made by the accused/Respondents was pending before the learned Sessions Judge, he had no jurisdiction to entertain the applications u/s 437, Code of Criminal Procedure or to pass any order thereon. The mere fact that the applications before the learned Sessions Judge were withdrawn during the pendency of the applications for bail before the Magistrate, will not cure the illegality which existed in the applications. Even in the application made for withdrawal of the bail applications does not mention that the applications were being withdrawn since bail applications u/s 437, Code of Criminal Procedure were pending before the Magistrate. It appears that even the Sessions Judge was not apprised of the fact that the bail applications had been simultaneously made to the learned Magistrate.
10. There is another aspect of the case. The bail applications u/s 437, Code of Criminal Procedure on behalf of the accused/ Respondents on 12-11-1997 were made by one Shri Rajinder Thakur, Advocate without there being any power of attorney on their behalf. The applications, therefore, were presented by the Counsel without there being any specific instructions/authority in his favour and even on this short ground alone, the learned Magistrate should not have entertained the applications.
11. As a result of the above, the impugned order dated 7-12-1999 of the learned Magistrate admitting the three accused/Respondents is set aside. The present petition stands disposed of accordingly.
38. While dealing with a case of judicial impropriety having been committed by Sessions Judge, in Criminal Appeal No. 452 of 1999, and other two connected cases, decided on 10.8.2000, in Harish Kumar and Ors. v. State of Himachal Pradesh, it was held by this Court as under:
55. Before parting with the case, it may be pointed out that the vernacular and English versions of the evidence in this case are at variance on various particulars betraying lack of proper control over the proceedings by the concerned Sessions Judge. He has authenticated both the versions as correct without due application of mind. Statement of PW-8 contains additions and cuttings and corresponding zimini orders (or any separate memorandum recorded by the Sessions Judge) do not show as to how these changes in the statement had been brought about and whether these have been carried out with his permission and under his authority or not. A sessions trial is a very sensitive and important class of criminal cases. A Sessions Judge can ill afford such lapses which create confusion and difficulties in appreciating the evidence and may result in passing a wrong judgment. The Registrar General to place the matter before the Hon''ble Chief Justice for such orders as may be deemed fit and proper in view of the above observations.
39. While questioning the legality and otherwise of impugned action Annexure P-l, Dr. Gupta urged that without going into other questions, the said order deserves to be quashed and set aside. With a view to buttress his this submission. Dr. Gupta pointed out that enquiry report was admittedly received by Respondent No. 2 on 29.5.1999. Its copy was sent to the Petitioner calling for his comments on 19.6.2000. However, before calling for Petitioner''s written representation on the enquiry report Annexure P-3, admittedly the matter was referred to the Administrative Committee of the Hon''ble High Court, which consisted of three Hon''ble Judges of this Court. All the three Hon''ble Judges vide their separate opinions suggested taking action against his client. Then the matter was placed before Full Court on receipt of the report. It was then that show cause notice Annexure P-6 was issued to the Petitioner by Respondent No. 2. It''s reply is Annexure P-7. Thereafter, recommendations were made to Respondent No. 1 for compulsorily retiring the Petitioner. Rule 15(1-A) of 1965 Rules has been followed more its breach than compliance by Respondent No. 2, according to Dr. Gupta. This has materially prejudiced his client, which was inherent in this case. As such, on this ground alone this writ petition deserves to be allowed.
40. This contention was seriously resisted by learned Senior Counsel appearing for Respondents 2 to 6. According to him, assuming for the sake of argument as correct what was urged on behalf of the Petitioner, still unless prejudice is shown to have been caused to him, because of either not sending of the enquiry report on its receipt and/or its having been considered by an Administrative Committee without receipt of the written representation from the Petitioner, action of his clients valid in law.
41. Prior to 42nd amendment to the Constitution of India, notice was required to be issued to a delinquent like Petitioner after receipt of enquiry report, then after having considered his explanation to show cause, before imposition of penalty, was also required to be issued.
42. After the decision of the Supreme Court of India in the case of
(1-A) The disciplinary authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
(1-B) The disciplinary authority shall consider the representation, if any submitted by the Government servant before proceeding further in the manner specified in Sub-rules (2) to (4).
43. What was intended by incorporating by Rules (1-A) and (1-B) supra was, that after receipt of enquiry report its copy needs to be made available to delinquent, who is required to submit his written representation or submission within fifteen days. It was thereafter for the competent authority to consider the enquiry report alongwith written explanation/submission of the delinquent. What further seems to be intended by incorporating Rules 15(1-A) and (1-B) supra is, that competent authority examines the matter, i.e., enquiry report alongwith written explanation of the delinquent and not otherwise. It is on examination of both that the authority should come to the conclusion that whether to accept the explanation or not. In the instant case, by referring the matter to the Administrative Committee of three Hon''ble Judges, and then after accepting the opinion of this Committee, Respondent No. 2 issued notice to the Petitioner calling for his written explanation. This could not have been done for the simple reason that before making up its mind to issue show cause notice of imposition of penalty, what was intended to be achieved with the incorporation of Rules 15(1-A) and (1-B) supra, after receipt of the enquiry report, stood defeated.
44. I have no hesitation in coming to the conclusion that breach and consequential prejudice was inherent in this case to the Petitioner. Reason being that in case his explanation was there and then the matter was examined by the Administrative Committee and/or Full Court the requirement of the aforesaid Rule would have been met with. Whereas in the instant case record produced by Mr. Rajiv Sharma, suggests that matter was considered without complying with the provisions of Rule 15(1-A) supra and then show cause notice Annexure P-6 was issued. Accordingly, submission made by Mr. Rajiv Sharma that in the absence of the explanation, the matter having been considered firstly by Administrative Committee and thereafter by the Full Court, did not cause any prejudice to the Petitioner is hereby rejected.
45. Another reason to take this view is that it negates the purpose and legislative intent that was behind enacting Rule 15(1-A and 1-B), supra after the decision in the case of Managing Director, ECIL, Hyderabad v. B. Karunakar, supra.
46. Plea urged by Mr. Sharma that no prejudice is caused to the Petitioner because of either delayed furnishing copy of enquiry report or the matter having been examined by the Administrative Committee before issuance of show cause notice vide Annexure P-6 is concerned, cannot be accepted. Act of Respondent No. 2 in getting the matter examined from an Administrative Committee before having called for the written explanation of a delinquent like Petitioner, denies reasonable opportunity to him. This also violates the principle of natural justice and fair play, which are otherwise independent rights. Without the written explanation of the Petitioner before Respondent No. 2, the Administrative Committee recommended the action only on the basis of enquiry report of Annexure P-3. It hardly needs to be clarified that in the instant case violation of principle of natural justice and prejudice both are interwoven being inseparable. Administrative Committee was a delegatee of the Full Court. Record produced during the course of hearing clearly shows, that this Committee had already recommended action against the Petitioner. Such a decision was only permissible after receipt of written explanation of the Petitioner. What follows from this is that delegatee of the Full Court had made its recommendations. Those were accepted by the Full Court. This further leads to the conclusion that the matter was pre-judged for taking action against the Petitioner. What followed thereafter was a mere formality. Rather it was one sided version that was before the Administrative Committee, which made its recommendations. This also establishes the plea of the Petitioner regarding prejudice being automatic.
47. In Zunjarrao Bhikaji Nagarkar v. Union of India 1999 (3) RSJ 523, it was held as under by the Supreme Court:
40. When we talk of negligence in a quasi judicial adjudication, it is not negligence perceived as carelessness sin advertence or omission but as culpable negligence. This is how this Court in
41. When penalty is not levied, the Assessee certainly benefits. But it cannot be said that by not levying the penalty the officer was favoured the Assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. Record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the Appellant showed ''favour'' to the Assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form basis for initiating disciplinary proceedings for an officer while he is acting as quasi judicial authority. It must be kept in mind that being a quasi judicial authority, he is always a subject to judicial supervision in appeal.
42. Initiation of disciplinary proceedings against an officer cannot take place on an information which is a vague or indefinite. Suspicion has no role to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to proceeding against the Appellant. There is no other instance to show that in similar case the Appellant invariably imposed penalty.
43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the Appellant. Since in sum and substance misconduct is sought to be inferred by the Appellant having committed an error of law, the charge-sheet on the face of it proceeds on a wholly illegal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law which is in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal, void and non est. The present charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication, where under quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.
44. Considering, whole aspects of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the Appellant. Charge of misconduct against him was not proper. It has to be quashed.
45. Before concluding, there are two aspects of the matter which we wish to point out. These are:
1. In the counter affidavit filed by the Union of India, it has been said that the SLP filed by the Appellant "is totally misconceived, premature and highly irresponsible. In the whole body of counter affidavit strong language has been used. Union of India is not a private litigant. Such language in the pleading should be avoided. One can be firm without being impolite. Such language should have been avoided.
2. There is a charge of misconduct against the Collector of Central Excise. While disciplinary proceedings are pending against him, he is transferred to the National Academy of Custom of Excise and Narcotics to guide the probationers, it is certainly a paradoxical situation that a man who is not fit to hold the post of Collector is fit enough to impart training to the probationers entering the service. Best talent should be sent to the academy to teach the probationers. Posting to the academy should be considered as an honour and not punishment. Our comment is no reflection on the Appellant herein as we have set aside the initiation of disciplinary proceedings against him.
48. Similarly in
7. It cannot be forgotten that in our system, like elsewhere, appellate and revisional Courts have been set upon the pre-supposition that lower Courts would in some measure of cases go wrong in decision making, both on facts as also on law and they have been knit-up to correct those orders. The human element in justicing being an important element, computer-like functioning cannot be expected of the Courts; however hard they may try and keep themselves precedent-trodden in the scope of discretions and in the manner of judging. Whenever any such intolerable error is detected by or pointed out to a superior Court, it is functionally required to correct that error and may, here and there, in an appropriate case, and in a case befitting, maintaining the dignity of the Court and independence of judiciary, convey its message in its judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellow but clear, and result-orienting, but rarely as a rebuke. Sharp reaction of the kind exhibited in the afore-extraction is not in keeping with institutional functioning. The premise that a Judge committed a mistake or an error beyond the limits of tolerance, is no ground to inflict condemnation on the Judge-Subordinate, unless there existed something else and for exceptional grounds.
49. Again in
7. In the present case, though elaborate enquiry has been conducted by the enquiry officer, there is hardly any material worth the name forthcoming except to scrutinize each one of the orders made by the Appellant on the judicial side to arrive at a different conclusion. That there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The enquiry officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best, he may say that the view taken by the Appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate Court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly. Indeed the words of caution are given in K.K. Dhawan case and A.N. Saxena case that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the Appellant in this case.
8. There are other two charges in respect of which the Appellant was found to be guilty. One relates to grant of order of stay of disconnection of telephone for non-payment of Rs. 410 to the Telephone Department in a consumer dispute filed by a senior Government doctor. All that he did in his capacity as Incharge District Judge on the assumption that the District Judge being the ex-officio Chairman of the District Consumer Forum he could grant such an order and that too when one of the members of the Forum has placed the papers before him seeking for orders. At best it is a case of bona fide and erroneous exercise of judicial powers and that matter cannot be treated as misconduct at all. How the enquiry officer could arrive at a finding that it is falling in one of the categories mentioned above, surpasses our comprehension.
9. The last charge is to the effect that the Appellant had appointed a mali (gardener) on a temporary basis for a period of 3-12 months at a time when he was Incharge District Judge. The action of the Appellant was too trivial to call for any action because the appointment made by him was not pursuant to any improper motives such as illegal gratification or otherwise. How the same amounts to misconduct is not clear to us at all except to state that he was only Incharge District Judge.
10. Thus we find that the findings recorded by the enquiry officer are totally vitiated for want of any legally acceptable or relevant evidence to support the charges of misconduct. In the absence of any evidence, the enquiry officer could not have reached the conclusion in the manner he did, and these findings affirmed by the disciplinary authority also stand vitiated.
11. The learned Counsel for the Respondents sought to rely upon a number of decisions of this Court to indicate the scope of interference in matters of this nature. We have adverted to the broad principles attracted to a case of this nature which are sufficient for disposal. Hence, we do not refer to other decisions.
12. We, therefore, have no hesitation to all this appeal, set aside the order made by the High Court and thereby allow the writ petition filed by the Appellant, directing his immediate reinstatement in service with continuity of service and all consequential benefits such as payment of arrears of salary and other benefits. No costs.
50. Similar matter came up for consideration before the Supreme Court of India in Yoginath D. Bagde v. State of Maharashtra and Anr. 1999 (4) RSJ 265, and while dealing with the submission, (as was urged by Mr. Rajiv Sharma that this Court cannot go into this question), it was held in para 53 as under:
53. It was lastly contended by Mr. Harish N. Salve that this Court cannot reappraise the evidence which has already been scrutinized by the Enquiry Officer as also by the Disciplinary Committee. It is contended that the High Court or this Court cannot, in exercise of its jurisdiction under Article 226 or 32 of the Constitution, act as the Appellate Authority in domestic enquiry or trial and it is not open to this Court to reappraise the evidence. The proposition as put forward by Mr. Salve is in very broad terms and cannot be accepted. The law is well-settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to have no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. In Kuldeep Singh v. The Commissioner of Police and Ors. JT 1998 (8) SC 603 , this Court, relying upon earlier decisions in
51. Why enquiry report could not be furnished by Respondent No. 2 immediately on its receipt within a reasonable time and then to call upon the Petitioner to file his written explanation as required under law, learned Senior Counsel had no explanation, except arguing that the matter was being examined by the High Court. What was to be examined, which took more than a year for the High Court, the only explanation given by the learned Senior Counsel was that the same was referred to the Administrative Committee. After more than a year notice was issued vide Annexure P-6 on 19.7.2000 by Respondent No. 2 to the Petitioner and he submitted his reply vide Annexure P-7. Judicial work of the Petitioner was withdrawn. Petitioner asked for the reasons for such withdrawal, those were not supplied to him.
52. So far charges of judicial impropriety in his conduct as a Judicial Officer covered under Charge Nos. VI, VII and IX are concerned, taking note of their nature and also keeping in view the decisions referred to in the preceding paras, his actions are also protected u/s 77 of the Indian Penal Code. Reason to take this view that it is not the case of any of the Respondents that the alleged acts were performed by the Petitioner either mala fide or for extraneous and irrelevant consideration.
53. Mr. Rajiv Sharma in this behalf urged, that the Petitioner is not entitled to the protection of Section 77 of the Indian Penal Code in view of the findings recorded by the Inquiry Officer, however, whether there is any charge of Petitioner having acted either mala fide and/or for extraneous and irrelevant consideration and why this provision of law does not protect the Petitioner, learned Senior Counsel was not in a position to controvert the plea of Dr. Gupta raised that the Petitioner is entitled to the protection of Section 77 of the Indian Penal Code.
54. So long Petitioner was in service, he was in law entitled for annual increments admissible to him. This position was not disputed on behalf of Respondent No. 2. Those were admittedly withheld for the years 1998, 1999 and 2000 by the said Respondent till Petitioners'' ceasing to be in service.
55. Withholding of increments is a minor penalty under Clause (iv) Rule 11 of 1965 Rules. This legal position was not disputed on behalf of Respondent No. 2. Increments were released only after Petitioner had ceased to be a Judicial Officer. How could Respondent No. 2 justify its action of withholding three annual increments till the passing of Annexure P-1, learned Senior Counsel for Respondent No. 2 was not in a position to satisfy the Court, except clarifying that after the mistake was detected needful was done by allowing the benefit of withheld three increments. It was further clarified on behalf of Respondent No. 2 that enquiry was contemplated and in fact it was undertaken, therefore, the increments were withheld.
56. This clearly indicates that for the so called alleged acts of misconduct/impropriety, minor penalty had already been inflicted upon the Petitioner by withholding his increments. Then under what authority of law while accepting the enquiry report recommendations were made by Respondent No. 2 for compulsory retirement of the Petitioner by his client, learned Senior Counsel for Respondent No. 2 could not point out anything.
57. Mr. Rajiv Sharma with a view to support the action of his client of withholding of annual increments for the years 1998, 1999 and 2000 relied on Rule 24 of the Fundamental Rules. This Rule reads as under:
F.R. 24. An increment shall ordinarily be drawn as a matter of course unless it is withheld. An increment may be withheld from a Government servant by the Central Government or by any other authority to whom the Central Government may delegate this power under Rule 6, if his conduct has not been good or his work has not been satisfactory. In ordering the withholding of an increment, the withholding authority shall state the period for which it is with-held, and whether the postponement shall have the effect of postponing future increments.
[Emphasis supplied]
58. Therefore, for the alleged acts of misconduct as contained in Annexure P-4, Petitioner was inflicted minor penalty permissible under law.
59. Suffice it to say in this behalf that when a notice for major penalty (as in the present case), has been issued by Respondent No. 2, minor penalty could be imposed. Withholding of three increments is admittedly a minor penalty under law, that stood already imposed on the Petitioner. No doubt on 15.11.2000 after the Petitioner ceased to be a Judicial Officer increments were released to him. Such release was even otherwise meaningless. Therefore, the plea urged on behalf of the Petitioner that his having been punished twice cannot be brushed aside.
60. Now coming to the role of Shri D.P. Sharma, Advocate. Bhalkhu Ram, Auto Rickshaw Driver handed over his complaint to this Advocate. This Advocate also makes a grievance against the order regarding not staying the order of execution when application of his client under Order IX, Rule 13 of the CPC is pending. As noted earlier, grievance, if any, could be to the litigant who should have been aggrieved by non-allowing of the application staying the execution and not at least by a Counsel who does not have any personal interest in the lis. Even otherwise when a reference is made to the stand of the Petitioner regarding said Shri D.P. Sharma, Advocate, it is evident that due to increase of conviction rate, said Shri D.P. Sharma felt offended and consequently manipulated the complaints through Bhalkhu Ram, Panna Lal and Santosh Kumar. Whom to produce as a witness in support of its case during departmental enquiry, which is fact finding in nature, is for the department to decide. But the entire material before Inquiry Officer is to be examined and conclusions are to be then arrived at.
61. DWs Tej Singh, R.S. Parmar and Shatrughan Kashyap, Advocates have spoken of good behaviour of the Petitioner. From Annexure P-18 it is evident that said Shri D.P. Sharma, Advocate, sometimes used to behave hotly with the Petitioner. D.P. Sharma used to feel hurt whenever any flaw in routine was pointed by the Presiding Officer, (the Petitioner). This witness during cross-examination stated Shri D.P. Sharma as a habitual complainant because in 1981 a complaint was sent by Shri Sharma against Shri Shamsher Singh, the then Presiding Officer. He has specifically stated that behaviour of Petitioner with Bar, litigants and staff was cordial. This DW had no problem qua Petitioner''s behaviour. It was D.P. Sharma''s behaviour that was indifferent. He has further stated that no lawyer was patronized by the Petitioner. D.P. Sharma had temperamental quality of complaining against Presiding Officers. He further stated that no complaint of D.P. Sharma was received in the Bar. At the relevant point of time i.e. December, 1996 to June, 1997, this DW was the President of the Bar. It is unfortunate that the Inquiry Officer has noted the statement of these three DWs (Advocates), but has not given any reason why he did not accept those. Similarly statement of DW S.S. Thakur has been brushed aside lightly. He was the District and Sessions Judge, Mandi at the relevant point of time, under whom the Petitioner was working. Assessment of this DW as Controlling Officer was satisfactory. He had spoken of general good reputation of the Petitioner.
62. While imposing punishment nature, gravity as well as seriousness of charges have always to be kept in view being a material and relevant consideration. No doubt it is for the competent authority to see as to what is the nature of misconduct alleged, and what would be punishment in a given situation depending upon the material produced during enquiry in each case. Still the fact remains that punishment always has to be commensurate as well as proportionate with the misconduct alleged. Thus for the view that has been taken hereinabove on the basis of evidence on record, as well as under law, it is evident that the punishment imposed upon the Petitioner is excessive and harsh, therefore on this count also impugned Annexure P-1 cannot be upheld.
63. On behalf of Respondent No. 1 it was contended by Mr. Chandel, learned Advocate General that so far his client is concerned, it has acted only on the advise of Respondent No. 2 and has not taken any independent action, as according to him in the disciplinary matters relating to Judicial Officers like the Petitioner serving in the State of Himachal Pradesh, recommendations made by Respondent No. 2 to Respondent No. 1 have to be given weightage as per law, and then action taken.
64. Another plea urged by Mr. Rajiv Sharma was, that when two views are possible on the basis of enquiry report, then the report of the Inquiry Officer is to be given credence. Further the disciplinary authority had agreed with the enquiry report. Therefore, it need not give any reason. What follows from this is that in such a situation it is the enquiry report that has to be challenged while filing an appeal. If this is the situation, then the plea that this Court cannot go into the findings recorded on the basis of evidence before the Inquiry Officer has to be rejected. Suffice it to say in this behalf that Annexure P-1 does not give any reasons. There is no other material on record as to what were the recommendations made to Respondent No. 1 by Respondent No. 2. In this view of the matter to say that the Petitioner cannot challenge and/or call upon this Court to examine the enquiry report alongwith evidence both oral as well as documentary, will be shutting the Petitioner, and consequently leaving him remediless. In this view of the matter reliance placed by Mr. Sharma on decisions of Supreme Court on behalf of Respondents 2 to 6 in
65. Similarly view that has been taken on the basis of material having been examined by the High Court before supplying a copy of the enquiry report to the Petitioner as well as in the absence of his written explanation, no benefit can be derived by Respondent No. 2 from the decision of the Supreme Court in
66. In addition to this on the question of seeking judicial review as well as on appreciation of evidence, proof of charges, assessment and findings of the disciplinary authority, decisions relied upon by Mr. Sharma in State of T.N. and Anr. v. S. Subramaniam 1996 7 SCC 509 ;
67. No other point is urged.
68. For the above mentioned reasons, this writ petition deserves to be allowed. And it is ordered accordingly. As a result of it, Annexures P-1 and P-3 both are quashed and set aside. As a fall out of this, it is held that consequence of quashing of Annexure P-1, Petitioner shall stand reinstated with all benefits including monetary and other service benefits. Record produced by Mr. Rajiv Sharma on behalf of Respondent No. 2 has been returned to him in Court. No costs.
