JUDGMENT [ENTITY], J.
1. By order in [CASE NUMBER] dated 1-3-1995, the High Court of Andhra Pradesh, the first respondent herein, found that the appellant was not fit to be retained in the judicial service as a Subordinate Judge and imposed the punishment of compulsory retirement from service. Questioning that the appellant preferred [CASE NUMBER] and that was dismissed by a learned single Judge by order dated 28-8-1995. The present Writ Appeal is directed against that judgment.
2. The facts are in a narrow compass. The appellant was directly recruited as District Munsif in November, 1979 and was promoted as Subordinate Judge in August, 1988. While working as Subordinate Judge at Cuddapah, he heard and disposed of [CASE NUMBER] by award dated 6-8-1990. The land acquired was of an extent of Ac. 15-76 cents. Under [CASE NUMBER] dated 21-3-1988 the Land Acquisition Officer awarded Rs. 14,065/- per acre. The appellant enhanced the compensation to Rs. 500/- per cent, i.e. Rs. 50,000/- per acre. Thereafter, on 3-9-1990 three of the claimants in that L.A.O.P. preferred [CASE NUMBER] seeking a review of the said award. On 6-11-1990 the appellant heard the final arguments in the I.A. and reserved orders. On 6-12-1990 he passed the final orders allowing the said I.A. by enhancing the compensation from Rs. 500/- per cent to Rs. 1,000/- per cent, i.e. to Rs. 1,00,000/- per acre. On 20-8-1992 the High Court ordered departmental enquiry against the appellant and appointed Mr. [ENTITY], District Judge, as the Enquiry Officer who issued charge memo dated [SECTION]-9-1992 to the appellant. The charge framed against the appellant is as follows:
"FIRSTLY that you, Sri [ENTITY], the then Subordinate Judge, Cuddapah and presently working as Subordinate Judge at Rajam (first delinquent herein) while working as Subordinate Judge at Cuddapah, you entertained a Review Petition in [CASE NUMBER] on 6-12-1990 against the Judgment and Award passed by yourself in [CASE NUMBER] dated 6-8-1990 and allowing the Review Petition you enhanced the compensation amount exorbitantly by fixing the market value of the acquired land at the rate of Rs. 1,000/- per cent as against Rs. 500/- per cent fixed by yourself only four months ago. Thus, you entertained and allowed the review petition against all well established principles governing the entertainment and allowing of review petition with an oblique motive and for extraneous considerations to benefit the claimant. Under the circumstances, it gives rise to an impression that you colluded with the said claimant to benefit him and you are thus guilty of misconduct and contravention of [SECTION] of the [ACT]."
The appellant gave his written explanation dated 9-10-1992. On 9-3-1993 Mr. [ENTITY], District Judge, was appointed as Enquiry Officer in the place of Mr. [ENTITY]. The appellant submitted his additional written statement dated 29-12-1993. After opportunity to the appellant and due enquiry, the Enquiry Officer submitted his report dated 5-9-1994 to the High Court. The High Court furnished a copy of the said report to the appellant and called for his explanation on 6-12-1994 and the appellant submitted his explanation dated 2-1-1995. Thereafter, the High Court passed the final orders on 1-3-1995.
3. The Enquiry Officer found that there as no basis whatsoever for the appellant to entertain to review application. The crucial findings of the Enquiry Officer, in his own words, are as follows;
" the basic facts required to be proved for review of judgment or order once made, are absent in this case, and the charged officer reviewed his own order by enhancing the market value, which he fixed hardly four months ago. When no ground existed or proved, and in the absence of compelling reasons demanding necessity to review the order, the charged officer entertained and allowed the review petition so as to enable the claimants (applicants) to derive advantage and benefit of his magnitude. Such conduct on the part of the charged officer smacks of his connivance to benefit the applicants (claimants), contrary to law, providing an inference of a tinge of dishonesty. It can be either judicial dishonesty or otherwise.
xxxxxx So, the disposal of the review petition by enhancing the market value granting twice the amount, needless to say, gave extraordinary benefit and advantage particularly when the review on grounds other than those contained under [SECTION] is forbidden by law. Still, the charged officer disregarded the explicit provisions of [SECTION] [ACT] starring at him and decided the review application in favour of the applicants (Claimants). The benefit which the claimants got due to the review of the order can by no means said to be trivial, or small in its nature, or content, having regard to the large extent of the acquired land (Acs.15-76 cents). An inference that the decision in the review petition was rendered for extraneous consideration to benefit the applicants (claimants) cannot be ruled out as a myth or a conjecture. When such huge benefit or bounty is sought to be conferred on the applicants (claimants), then the preponderance of probability is to draw an inference of collusion or connivance of the charged officer with them."
4. The learned Single Judge found that for enhancing the compensation from Rs. 500/- to Rs. 1000/- the appellant has absolutely no material or evidence before him and that therefore he acted in utter disregard of [SECTION] [ACT] and that the order in review resulted in undue favour to the claimants. The learned Single Judge further held that the appellant functioned as a District Munsif for a period of 12 years before he was promoted as a Subordinate Judge and that it was unbelievable that he was not aware of the ingredients of [SECTION] [ACT] and the grounds under which power of review can be exercised and that in enhancing the compensation in such an arbitrary way he acted in a manner which would reflect on his reputation and his integrity. Relying on the judgments of the Supreme Court in [PRECEDENT], and Union of India v. [ENTITY], , the learned Single Judge held that no case for interference with the impugned order under [SECTION] of the [ACT] was made out and in that view dismissed the writ petition.
5. Before us, the learned Counsel for the appellant raises the following contentions.
(i) The High Court has no authority or jurisdiction to pass the impugned order as the appointing authority of the appellant was the Governor and therefore the punishment of compulsory retirement can be imposed only by the Governor and not by the High Court.
(ii) The wording of the charge shows pre-judging of the issue and predetermining of the guilt and therefore, the entire enquiry is in violation of the principles of natural justice and fair play and therefore is vitiated and liable to be set aside.
(iii) The conclusions arrived at by the Enquiry Officer are not based on evidence on record and are merely based on presumptions, assumptions and conjectures. There is no semblance of evidence to support the conclusions of the Enquiry Officer. On the other hand, the evidence on record is contrary to the findings of the Enquiry Officer. The Enquiry Officer did not consider the evidence of P.Ws. 3 and 4 examined in support of the charge. In the circumstances, there was no application of mind and therefore, the findings of the Enquiry Officer are perverse and cannot be acted upon.
6. The first contention of the learned Counsel for the appellant need not detain us for long. He himself accepts that this contention was not urged before the learned Single Judge because of the Full Bench Judgment of this Court in High Court of A.P. v. Government of A.P., 1982 (2) ALT 356, wherein it has been held that [SECTION] of the [ACT] to the extent it denies to the High Court of Andhra Pradesh power of infliction of the punishment of compulsory retirement on members of the State Judicial Service, must be declared to be invalid. But, we need not rely upon that Full Bench Judgment of this Court as the basis for this contention is the assumption that the appointing authority of a Subordinate Judge is the Governor. The Rules clearly show that the appointing authority of a Subordinate Judge is the High Court. [SECTION] of the [ACT] provides that the appointing authority means 'in the case of promotion of a District Munsif as a Subordinate Judge, the High Court'. If the High Court is the appointing authority, there is no gainsaying the fact that the High Court can impose all punishments including punishment by way of compulsory retirement. The learned Counsel for the appellant does not dispute this. Therefore, we do not find any merit in this contention.
7. In support of the contention based on the frame of the charge, the learned Counsel refers to the last sentence in the charge:
"Under the circumstances, it gives rise to an impression that you colluded with the said claimant to benefit him and you are thus guilty of misconduct "
He submits that the statement that "it gives rise to an impression that you colluded with the said claimant " amounts to prejudging the issue because the enquiry officer already got 'an impression' that the delinquent officer (appellant) colluded with the claimant. We find that rather far-fetched. "Gives rise to an impression" in the context obviously means "prone to create an impression". We may also point out that this contention was not raised in the writ petition or before The learned single Judge or in the grounds for the present writ appeal. The learned Counsel for the first respondent draws our attention to the charge- sheet dated [SECTION]-9-1992 wherein the appellant was required to fill in the questionaire in Form No. l and resubmit the same. This was as per instruction 3 of the instructions contained in [SECTION] to the [ACT] ('C.C.A. Rules' for short). Item 1 of Form 1 is the question "have you any objection to the form of any of the charges?" We perused Form 1 filled up by the appellant and sent along with his written statement dated 9-10-1992, which is in the record. In answer to the said question he stated therein that he had no objection. The contention now raised is obviously an after-thought. We are therefore not inclined to allow the appellant to raise this contention before us. Even otherwise, we do not find any merit in it. In our view the contents of the charge as framed do not give rise to any impression that the enquiry officer had prejudged the matter or had a closed mind. Counsel for the appellant relies on the decision of a Division Bench of this Court in [PRECEDENT]. The Bench held that the statement in the charge memos that the delinquents "had abused their position and brought discredit to the department" was a categorical opinion which indicated bias and that "to say that the delinquents did not protest at that time is to ignore the fact that they being in service in the lowest rung, may have entertained a fear of antagonising the superior" and "at any rate, that cannot be a matter which can be taken into consideration in determining whether the proceedings have been validly initiated". However, the Bench also observed in that case that "the facts in each case therefore will have to be taken into consideration in determining whether there is a violation of the principles of natural justice and fair hearing". In the present case the appellant was a Subordinate Judge at the relevant time and he did not raise any objection to the charge at the relevant time even though specifically asked in Form 1 and he did not raise any objection to the charge even in his writ petition he did not even raise any such contention before the learned single Judge. Even apart from that, as already observed by us, a reading of the charge does not, in any way, indicate that the enquiry officer did not have an open mind. In this connection we have also to note that the enquiry officer who framed the charge was replaced by another enquiry officer and it was he who completed the enquiry and gave the report. Counsel also relies on the decision of a learned Single Judge of this Court in [PRECEDENT]. In that case charge memo was issued by a disciplinary authority / punishing authority and the enquiry officer was subordinate to him. The charge memo, inter alia, stated as follows:
"By your aforesaid acts, you have temporarily misappropriated the amounts collected towards insurance premiums, tampered with the official records, failed to maintain obsolute integrity and acted in a manner prejudicial to good conduct and to the detriment of the interests of the Corporation.
You have thus violated the provisions of [SECTION] and [SECTION] of the [ACT] "
The learned single Judge held:
" from a reading of the paras extracted above, it appears to me that they do indicate a determination of the matter in dispute by the punishing authority. It is not in dispute that the enquiry officer is subordinate to the disciplinary authority. Therefore, these conclusions made in the charge-sheet are bound to influence his mind and therefore the petitioner's contention that the paras above referred to in the charge sheet created impression that the enquiry is a mere formality and a farce, cannot be said to be unjustified."
In [CASE NUMBER] preferred against the decision of the learned Single Judge in that case, a Division Bench of this Court in its judgment dated 28-2-1991 observed that there was some force in the contention that that finding recorded by the learned single Judge was not sustainable.
8. Counsel for the appellant strenuously contends that the findings of the enquiry officer are not based on any evidence and amount to mere conjectures and surmises and on such findings the appellant ought not have been visited with the punishment of compulsory retirement. According to him the findings so vitiated are the following in paragraphs 13, 14 and 15 of the enquiry officer's report dated 5-9-1994:
(a) "When no grounds existed or proved, and in the absence of compelling reasons demanding necessity to review the order, the charged officer entertained and allowed the review petition so as to enable the claimants (applicants) to derive advantage and benefit of this magnitude. Such conduct on the part of the charged officer smacks of his connivance to benefit the applicants (claimants) contrary to law-providing an inference of a tinge of dishonesty. It can be either judicial dishonesty or otherwise."
(b) "So, the disposal of the review petition by enhancing the market value granting twice the amount, needless to say, gave extraordinary benefit and advantage particularly when the review on the grounds other than those contained under [SECTION] is forbidden by law The benefit which the claimants got due to the review of the order can by no means said to be trivial, or small in its nature, or content, having regard to the large extent of the acquired land (Acs.15-76 cents). An inference that the decision in the review petition was rendered for extraneous consideration to benefit the applicants (claimants) cannot be ruled out as a myth or a conjecture. When such huge benefit or bounty is sought to be conferred on the applicants (claimants), then the preponderance of probability is to draw an inference of collusion or connivance of the charged officer with them."
(c) "The expression 'misconduct' when constructed in the light of facts dealt above, the conclusion that the charged officer is guilty of misconduct is inevitable. Hence, I find that the charge is proved and I find him guilty of the same."
Counsel submits that the underlined portions of the above passages are findings based on no evidence And therefore are vitiated. It is obvious that the findings referred to by the Counsel purport to be only inferential in nature.
9. Before proceeding further, it is necessary to notice the reasoning of the appellant in awarding compensation at Rs. 500/- percent in [CASE NUMBER] and the manner in which he dealt with the matter in [CASE NUMBER] in that L.A.O.P.
10. The judgment of the appellant in that L.A.O.P. dated 6-8-1990 was marked as Ex.P.14 by the enquiry officer. After discussing the evidence the appellant held as follows:
"The various sale deeds filed by the claimants show that the value of the lands is from Rs. 1000/- to 1300/- per cent that the value is growing up day by day. I find some force in the contention of the learned Government Pleader that the claimants want to boost up the sales. The villagers are aware of the proposals of acquisition of land It is pertinent to note that the sale transactions under Ex.B-8 to B-20 are for small extents like 5 cents and 6 cents and they have nothing to loose by boosting up the values. Therefore I feel that I cannot place reliance upon the sale deeds filed by the claimants as I am of the opinion that they were made to boost the value of the land with an eye to get more compensation because they are aware of the proposals of the Government The Notification was made on 7-11-1985 The learned Government Pleader has pointed out that in another batch of similar petitions the Court has fixed the market value of the lands at the rate of Rs. 500/- per cent for acquisition of the lands in the same area and for the same purpose. It is true that this Court has fixed the market value of the lands at the rate of Rs. 500/- per cent. So there is no reason for me for not adopting the same norms. The lands in these O.Ps. are also having the same potentiality and in very close proximity to Cuddapah town and considering all those aspects the Court can fix the market value of the land at Rs. 500 /- per cent. Therefore I feel that the same procedure has to be adopted and I fix the market value of the lands at Rs. 500/- per cent. The Land Acquisition Officer has deducted 1 /3rd of the value of the land for the development activity Area is developed and hence I feel that 10% deduction can be given for developmental activities."
The enquiry officer observes that on 8-8-1990 the Government Pleader, who was examined as P.W.4, filed a copy application (Ex.P-16) for a certified copy of the order to prefer an appeal in the High Court. P.W.4 also stated in his evidence that by the time [CASE NUMBER] came up for hearing and disposal, he prepared the brief and sent it for filing an appeal and that he also learnt that an appeal was filed in the High Court.
11. Review Petition (Ex.P-17) numbered as [CASE NUMBER] was presented on 3-9-1990 and the Government Pleader filed counter (Ex.P-18) on 23-10-1990 opposing the petition. It is an admitted fact that no additional evidence was adduced in the I.A. The order of the appellant in the LA. dated 6-12-1990 was marked as Ex.P-19 by the enquiry officer. The main contention raised in the review petition by the three claimants who preferred it is that they were not interested in their lands being acquired and that they did not create any documents to boost up the market value and that the potential value of their lands for building purposes was not taken into consideration by the appellant in fixing the compensation at Rs. 500/ -per cent and that the compensation fixed in the award relied upon by the learned Government Pleader was in respect of another batch of lands and that those lands were only agricultural lands whereas their lands were useful for house sites. On that basis they sought review of the orders passed in [CASE NUMBER] and refixing the value at Rs. 1,500/- per cent taking into consideration the facts mentioned by them in the review petition. That was opposed in the counter-affidavit (Ex.P-18). It was stated therein that all the contentions advanced in the review petition were discussed and considered in the judgment in the L.A.O.P. and that provisions of [SECTION] and [SECTION] and [SECTION] of the [ACT] did not apply to the facts of the case and that it was open for the claimants to file an appeal and that it was not a case of any error on facts apparent on the record.
12. The reasoning adopted by the appellant in his order Ex.P-19 in the I.A., in his own words, is as follows:
"In the Award itself (of the LAO) which is marked as Ex.A-1 it is mentioned that they do not find any traces of cultivation in the acquired lands and the lands in the vicinity also show that they are sold for construction of houses and huge plots of lands in the vicinity were split up for use as house sites It is contended by the learned Counsel for the petitioner that the Court has relied upon the award passed in another reference in which the compensation was fixed at Rs. 500/- per cent and those lands are agricultural lands. Without the order being produced into the Court the Court could not have placed reliance on such orders by it. But the learned Government Pleader had contended that the Court can take judicial note of the fact that the Court has fixed the valuation for the lands in the other references. He also stated that all the lands under this reference and the lands which are considered by this Court are contiguous to each other. No doubt from going through the orders the finding of fixing the valuation at Rs. 500/- per cent conflicts with the earlier findings made by this Court. The Counter filed by the Government Pleader does not show that the lands which the Court had referred to are the agricultural lands except stating that the Court can take judicial notice of the fact. He did not file the earlier orders also and what is the nature of the lands. Thus the findings given by this Court by fixing the valuation of the acquired land at the rate of Rs. 500/- is in conflict with the earlier findings by this Court that the acquired lands used as house plots and they have got high potentiality. If the Court adopts the value awarded in the earlier reference fixing the value at Rs. 500/- which is an agricultural land it amounts to treating this land also on par with agricultural land. Thus the orders passed by this Court and the finding arrived at must be in consonance with the earlier reasoning given in this order and it cannot run contrary to the earlier reasons and findings. Thus a mistake crept in by this court by finding the market value of the lands under this reference at Rs. 500/-percent which shows that the acquired lands are treated as agricultural lands which is contrary to the material available on record. Thus the orders passed by this Court earlier calls for a review. At this juncture the learned Counsel for the petitioner has relied upon a decision reported in [PRECEDENT] at page 257 in [ENTITY] v. Nagula Ramaswamy and Ors. "
After referring to a passage in that decision the appellant held as follows:
"The petitioner had claimed compensation to be fixed at Rs. 1,500/- percent and the Land Acquisition Officer fixed the value at the rate of Rs. 14,065/- per acre. The lands made be of high potentialities of improvements and they are used as house plots, yet the compensation claimed by the claimants is on higher side considering the fact that the sale deeds relied upon by them are boosted up because of the in pending acquisition of the lands. Therefore taking into consideration the potentialities of improvement and the situation of the lands in the vicinity of Professors' colony, Industrial Estate and nearer to the Railways and the fact that the acquired lands are used as house plots, I feel that ends of justice will be met by awarding compensation by enhancing the market value at the rate of Rs. 1,000/- per cent. The other findings with regard to the deduction of 10% for the developmental activity need not be disturbed.
Hence I allow the petition. The orders passed on 6-8-1990 are reviewed and the compensation is fixed by awarding the market value for the acquired lands at Rs. l,000/- percent and other reliefs are kept intact. There is no order as to costs."
13. The enquiry officer observed in his report that the charge against the appellant was that he entertained and allowed the review petition contrary to well established principles with an oblique motive and with extraneous consideration to benefit the claimants which gave rise to an inference of collusion with the claimants and that the plea of the charged officer was that he allowed the review petition due to inexperience. After noticing what misconduct meant and the scope of review under [SECTION] and the scope of inherent powers under [SECTION] of the [ACT] for correcting orders for ends of justice, the enquiry officer held that the claimants did not produce any evidence which they discovered and did not produce earlier and that there was no mistake or error apparent on the face of the record in the order sought to be reviewed and that without any grounds being made out the appellant reviewed his own order by enhancing the compensation by doubling the market value so as to enable the claimants to derive advantage of considerable magnitude, the extent of the acquired land being Acs. 15-76 cents. The conclusions and inferences arrived at by the enquiry officer as regards the conduct of the appellant are thus based on undisputed and uncontrovertable facts evident from the record which make transparently clear the indefensible and egregious manner in which the appellant doubled the market value. The appellant claims ignorance of law relating to awarding of compensation in land acquisition matters. Ignorance may be a bliss elsewhere; but can it be to a Judicial Officer exercising judicial powers?
14. Under the circumstances, the contention of the learned Counsel for the appellant that the enquiry officer did not consider the evidence of P.W.4, the Government Pleader, in his cross-examination that the appellant "maintained good reputation of being a good and honest and an intelligent officer amongst the members of the Bar" does not hold after if this is a case where the facts speak by themselves and the certificate given by the Government Pleader cannot offset what the facts speak. Counsel for the appellant submits that the appellant as a judicial officer has passed an order according to his lights and that the same can be corrected by the superior Courts and that erroneous judicial orders cannot be made the basis for disciplinary action on grounds of misconduct. He submits that from such orders conclusions and inferences such as drawn in the present case are out of place. This raises questions of considerable import which have to be considered with circumspection. It depends on what misconduct is and what type of misconduct could attract disciplinary action-in particular, in relation to judicial officers.
15. Misconduct is a very general term "for conduct falling short of what it should be" (The Oxford Companion to Law). The expression was considered elaborately by a two Judges Bench of the Supreme Court in [PRECEDENT], . Dealing with what generally constitutes misconduct, especially in the context of disciplinary proceedings entailing penalty, the Supreme Court observed:
"Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that that conduct which is blameworthy for the Government servant in the context of Conduct Rules would be misconduct. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see [PRECEDENT] (at P.542) In industrial jurisprudence amongst others, habitual or gross negligence constitute misconduct but in [PRECEDENT], , in the absence of standing orders governing the employee's undertaking, unsatisfactory work was treated as misconduct in the context of discharge being assailed as punitive. In [PRECEDENT], (same as 2 supra), the manner in which a member of the service discharged his quasi-judicial function disclosing abuse of power was treated as constituting misconduct for initiating disciplinary proceedings. A single act or omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences the same may amount to misconduct as was held by this Court in [PRECEDENT], It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wicknedness or malevolence But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct "
But the Supreme Court disagreed with the view that misconduct in the context of disciplinary proceeding means misbehaviour involving some form of guilty mind or means rea and observed that "gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings."
16. In [PRECEDENT], a three Judges Bench of the Supreme Court dealt with the scope and ambit of the expression 'misconduct' while considering [SECTION] of [ACT] which provided for dismissal "only for the gravest acts of misconduct or as the cumulative effect of continued misconduct proving incorrigibility and complete unfitness for police service " Referring to the various definitions of "misconduct", the Supreme Court observed as follows:
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999 thus:
A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.
Misconduct in Office has been defined as:
"Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the act of an affirmative duty to act.' [ENTITY]'s Law Lexicon, Reprint Edition 1987 at page 821 defines 'misconduct' thus:
"The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context where in the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.' Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order."
It was found in that case that the respondent was heavily drunk while on duty and he was caught while wandering in the market with service revolver and when taken into custody and sent to the doctor, he abused the doctor. Rejecting the contention that taking alcohol as such was not a misconduct and that the solitary act of drinking alcohol per se was not gravest misconduct and that the respondent should not have been dismissed from service when he had put in 17 years of unblemished service, the Supreme Court held as follows:
"The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word 'acts' would include singular 'act' as well. It is not the repetition of the acts complained of but its quality, insidious effect and gravity of situation that ensues from the offending 'act'. The colour of the gravest act must be gathered from the surrounding or attending circumstances. Take for instance the delinquent who put in 29 years of continuous length of service and had unblemished record; in thirtieth year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should not be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously No. Therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct."
17. The expression 'misconduct' as used in [SECTION] of the [ACT] which provides that an award can be set aside when an arbitrator has misconducted himself or the proceedings before him, is explained by the Supreme Court in [PRECEDENT], . A three judges Bench of the Supreme Court has held that misconduct under [SECTION] does not connote moral lapse and that it comprises legal misconduct which is complete if the arbitrator on the face of the award arrives at an inconsistent conclusion even on his own finding or arrives at a decision by ignoring very material documents which throw adundant light on the controversy to help a just and fair decision. This view has been reiterated by the Supreme Court in [PRECEDENT], by holding that "the word 'misconduct' in [SECTION] does not necessarily comprehend or include misconduct of fradulent or improper conduct or moral lapse but does comprehend and include actions on the part of the arbitrator, which on the face of the award, are opposed to all rational and reasonable principles resulting in excessive award or unjust result or the like circumstances which tend to show non-application of the mind to the material facts placed before the arbitrator or umpire." The Supreme Court has clarified further in that case that the expression 'misconduct' is often used" in a technical sense denoting irregularity and not guilt of any moral turpitude, that is, in the sense of non-application of the mind to the relevant aspects of the dispute in its adjudication".
18. The question then is, what types of misconduct can give rise to disciplinary proceedings and punitive action in the case of 'judicial or qausijudicial authorities'. There is no longer any doubt that disciplinary action can be taken in regard to actions taken or purported to be done in the course of judicial or quasi-judicial proceedings. This has been laid down by a two Judges Bench of the Supreme Court with a warning of caution in Union of India v. [ENTITY], as follows:
"It is true that when an officer is performing judicial or quasi -judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such proceedings, it is true, is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence. Hence, the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. But it is not as if such action cannot be taken at all. Where the actions of such an officer indicate culpability, namely, a desire to oblique himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken".
A three Judges Bench of the Supreme Court has further clarified the position and has laid down the guidelines in such matters in Union of India v. [ENTITY], earlier decision of the Supreme Court in [PRECEDENT] has been extensively referred to. In that case, which related to an I.A.S. Officer exercising quasi-judicial powers under [ACT], it was held that Government could take disciplinary proceedings against him "in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the service". In [ENTITY]'s case, the Supreme Court held as follows:
"Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer Thus, we conclude that the disciplinary action can be taken in the following cases:
(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty:
(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) if he has acted in a manner which is unbecoming of a Government servant;
(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party;
(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord [ENTITY] said long ago "though the bribe may be small, yet the fault is great'.
The instance above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution-Each case will depend upon the facts and no absolute rule can be postulated".
This view has been reiterated by the Supreme Court in Union of India v. [ENTITY],
19. The three cases of [ENTITY] (14 supra), [ENTITY] (15 supra) and [ENTITY], related to officers of Income-tax Department exercising quasi-judicial powers. The principles laid down in these cases apply a fortiori and with greater vigour to judicial officers exercising judicial powers. [PRECEDENT], deals with the conduct of a judicial officer, a civil Judge in the Karnataka judicial service, who was the appellant before the Supreme Court. One of the charges framed against the appellant related to enhancing the compensation under the [ACT] - higher valuation than was legitimate of the lands was fixed by him. The Supreme Court held as follows in that regard:
"Fixation of valuation was a judicial act of the appellant. We would like to make a special mention of the position that even if the assessment of valuation is modified or affirmed in appeal as a part of the judicial process, the conduct of the judicial officer drawable from an overall picture of the matter would yet he available to be looked into. In appropriate cases it may(be) open to draw inference even from judicial acts "
On the facts of that case the Supreme Court has held that there is some scope for the appellant's stand being accepted that there was a mistake and no ill-motive and he is entitled to the benefit of doubt. The above passage has been referred to in the subsequently decided land acquisition matter - [PRECEDENT], relating to award of compensation under [ACT], further observing as follows:
"The rule of conduct spurned by this Court squarely put the nail on the official act as a refuge to fix arbitrary and unreasonable market value and the person concerned shall not camouflage the official act to a hidden conduct in the function of fixing arbitrary or unreasonable compensation to the acquired land."
Though the question that arose in [PRECEDENT], related to compulsory retirement of a Collector of Customs under Fundamental Rule56(j) on 'doubtful integrity' the Supreme Court affirmed the above referred ratio in [ENTITY], and Periyar & Pareekanni Rubbers Limited, observing that the conduct of Collector of Customs under consideration in that case related to discharge of his quasi-judicial functions.
20. The law is thus clearly laid by the Apex Court as regards the circumstances under which judicial functioning of judicial officers attracts disciplinary scrutiny and punitive action. The resultant position is that the conduct of a judicial officer in exercise of his judicial functions can be the subject matter of disciplinary action. We also have to observe that judicial officers exercise sovereign judicial power of the State and they hold an office of trust. Judicial probity is of utmost importance and it is on this bed-rock that public confidence rests. As observed by the Supreme Court in the first All India Judges' Association case, quoting from Chief Justice [ENTITY] of the American Supreme Court:
"A sense of confidence in the Courts is essential to maintain the fabric of ordered liberty for a free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control to ensure it."
21. It follows therefore that disciplinary action taken against the appellant cannot be assailed if from an overall picture of the matter it is found that he acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty or that he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of statutory powers or if he had acted in order to unduly favour a party - it is not necessary that he should have been actuated by corrupt motive. In the present case it is not necessary for us to enquire as to whether each one of these singly would a mount to misconduct warranting punitive action: because the disciplinary authority has held that all these are found in the present case.
22. It has been found by the disciplinary authority that the appellant purported to exercise revisional powers under [SECTION] when none of the preconditions for the exercise of that power existed. Inherent power under [SECTION] [ACT] was also sought to be exercised. A Division Bench of this Court has clearly laid down in [PRECEDENT] at follows:
"In the instant case, we are concerned with the limited question as to whether the Court below, in the ends of justice, could come to the succour of the plaintiff who had a remedy open to him in law but has failed to avail of the same and instead has invoked the inherent powers of the trial Court. The Trial Court as soon as a final order has been passed, and the rights of parties have been determined, save in vitiating circumstances or where the order ought to be reviewed, will be very slow to interfere with its own order. As a matter of fact, when an appeal is open, it is only fair and just that the matter should be left for the determination of the appellate Court concerned. It will not be justice if a Court, time and again, unsettles what has been settled by it and thus creates a state of suspended animation. Certainly the inherent powers referred to in Section cannot be exercised therefor."
The Division Bench reiterated as follows:
"It is therefore obvious that when there is a right of appeal and the party can obtain relief in the Court of appeal, ordinarily it is not open to the trail Court to set aside its own order unless it is permissible under [SECTION], [SECTION], [ACT] or the case falls within [SECTION] and [SECTION], [ACT]"
This passage was referred to by another Division Bench of this Court in [ENTITY] v. N. Ramaswamy, 1972 (l) An.W.R. 257 and did not differ from it. In this latter case it was observed that that principle would not apply to the facts of that case because the order which was sought to be recalled was made under [SECTION] [ACT] and as not an appealable one. As already pointed out earlier, [ENTITY]'s case (22 supra) was referred to by the appellant in his order in the I.A. (Ex.P.19) and the passage from that case extracted by him contains the following sentence also:
"An order made under [SECTION], [ACT], is not an appealable one and therefore, there is no finality attached to the order." Appellant's order in L. A.O.P. was appealable; yet closing his eyes to this crucial differentiating feature, the appellant ignored the ratio in [ENTITY]' case (21 supra) that when there was a right of appeal it was not open to the trial Court to set aside its own order unless it was permissible under [SECTION].
23. The order fixing the market value at Rs. 500/- per cent in the earlier land acquisition proceedings was not filed by the claimants in the review LA. The facts show that the market value at Rs. 500/- per cent was itself fixed in the L.A.O.P on the basis of a virtual concession made by the Government Pleader (P.W.4) without the order in the earlier land acquisition matters being filed. Therefore, appellant had no material based on which he could say that in the earlier land acquisition matters market value was fixed without taking into consideration the potentiality of the lands. Apart from this, as already observed by us earlier, the appellant had not given any reason or basis for enhancing the market value from Rs. 500/- to Rs. 1,000/- percent except stating that he felt that "ends of justice will be met by awarding compensation by enhancing the market value at the rate of Rs. 1,000/- per cent." He has thus unduly favoured the claimants. The first respondent in its proceedings dated 1-3-1995 observed that "normally it would be very difficult to prove extraneous considerations by positive evidence and if any judicial officer deliberately violates the well established procedure and pronounce judgments then it has to be considered whether such judgments are pronounced on account of extraneous consideration or not" and that the enquiry officer in his report "clearly pointed out that when such huge benefit or bounty is sought to be conferred on the claimants, then, the preponderance of probability is to draw an inference of collusion or connivance of the charged officer with them" and agreed with the findings of the enquiry officer.
[SECTION]. In the light of the above discussion, can it be said that the findings of, and inferences drawn from those findings by, the enquiry officer as accepted by the first respondent merit interference in exercise of the power of judicial review by this Court? Our answer is in the negative keeping in view the scope of judicial review as elaborated by a three Judges Bench of the Supreme Court with specific reference to departmental enquiries for misconduct in [PRECEDENT], :
"Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of [ACT] nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
25. In the result, the Writ Appeal is dismissed: No costs.