CIVIL WRIT JURISDICTION CASE No.2452 OF 2004 ***** In the matter of an application under Article 226 of the Constitution of India. ***** ARVIND AZAD, S/o Shri Braj Nandan Azad, R/o Village - Chandrahatti, P.S. Kurhani, District – Muzaffarpur ----------------------------- Petitioner Versus 1. THE STATE OF BIHAR, 2. The Patna High Court through its Registrar General, Patna, 3. The Registrar General, Patna High Court, Patna, 4. The Secretary, Department of Personnel & Administrative Reforms, Government of Bihar, Patna, 5. The Dy. Secretary, Department of Personnel & Administrative Reforms, Govt. of Bihar, Patna and 6. The Secretary, Department of Law, Govt. of Bihar, Patna------------------------------- Respondents. ***** For the Petitioner : Mr Ganesh Prasad Singh,Sr.Advocate & Mr Manish Kumar, Advocate. For the State of Bihar: Mr S.K. Sharma, G.A. V & Mr Sanjay Prakash Verma, JC to GA V. For the High Court: Mr Lalit Kishore, Sr. Advocate & Mr Piyush Lall ***** P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH AND THE HON'BLE MR. JUSTICE C.M. PRASAD Barin Ghosh, J. Heard learned counsel for the parties. Petitioner, a dismissed Judicial Officer of the State of Bihar, has filed the present writ petition challenging the order dismissing him from his services passed in disciplinary 2 proceedings. The charge sheet issued against the petitioner contained two charges. In respect of one of the charges, petitioner has not been found guilty and, accordingly, we have not applied our mind in relation to the said charge and the materials which have come on record in relation thereto. The charge which stands proved against the petitioner and for which the petitioner has been dismissed from his services by the order impugned in this writ petition is as follows:- “You, Sri Arvind Azad, while functioning as Judicial Magistrate at Lohardagga, had in collusion with the Bench Clerk named Mahendra Ram, attached to your Court, and others were found issuing fake warrants of arrest/processes in certain Criminal Cases, to wit, G.R. Case No. 321 of 1989 against the accused Jafir Ansari and later recalling the same for pecuniary considerations and that you had allowed the use of blank papers containing your signatures for converting the same into fake 3 warrants of arrest and recall orders. Your aforesaid acts amount to gross judicial impropriety, lack of integrity, grave misconduct and a conduct unbecoming of a reasonable Judicial Officer”. Petitioner applied for and, on permission being granted, obtained inspection of the records of G.R. Case No. 321 of 1989. He thereupon gave his reply to the charge sheet. He denied the charge. He stated that he did not issue any fake warrant of arrest or process, nor did he issue any order recalling any warrant of arrest. He also denied having left any blank paper containing his signature. In the reply, he stated that on 2nd February, 1994, he took the charge of the Court dealing with the said case. He stated that prior thereto on 12th November, 1992 and on 11th January, 1994 warrants of arrest were issued against Jafir Ansari by his predecessor in connection with the said case inasmuch as Jafir Ansari, one of the accused persons in the said case, did not appear on the dates fixed, nor filed any application under Section 317 of the Code. He also stated that two sets of advocates were filing attendance and petitions under Section 317 of the Code in connection with the said case when the 4 names of some accused persons were mentioned twice, but not of Jafir Ansari. He stated that there is existence of an application under Section 317 of the Code said to have been filed on behalf of Jafir Ansari, but there is no suggestion in the order sheets that the same was accepted. He stated that the order sheet dated 22nd May, 1993 suggests that three accused persons were present but the name of Jafir Ansari was added as the 4th accused person for the purpose of showing him present on the said date. It was stated that an application filed on the said date by six accused persons under Section 317 of the Code was shown as an application filed by seven accused persons in the order sheet by interpolation said to have been made by the Clerk attached to the Court without any acknowledgment of or authentication by the Presiding Officer of the Court. It was alleged that similar interpolations were made in the order sheets of 22nd July, 1993, 25th September, 1993, 16th November, 1993 and 11th January, 1994. It was insinuated that the said interpolations are glaring, inasmuch as on 11th January, 1994 once again a warrant of arrest was issued by the previous Presiding Officer of the Court against Jafir Ansari. In his reply to the charge sheet petitioner stated 5 that on 2nd March, 1994 for the first time, he took up the case. The order sheet of that date suggests that Jafir Ansari has filed a petition under Section 317 of the Code, but there is no acceptance of the said application. He stated that the order sheets dated 5th May, 1994, 19th July, 1994 and 1st September, 1994 would show that applications made by “9” accused persons under Section 317 of the Code were accepted, but a close scrutiny of the order sheets of the said dates would demonstrate that “9” was converted into “10” to suggest Jafir Ansari too had filed application under Section 317 of the Code. He stated that name of Jafir Ansari was added by interpolation at serial no.3, where the name of Rojan Ansari was written. He stated that similar interpolation was made in the order sheet dated 11th November, 1994. He contended that the order sheet dated 28th January, 1995 would show that two accused persons namely, Idris and Usman were physically present and a petition under Section 317 of the Code was filed in respect of 7 other accused persons but by interpolation, “7” has been converted into “8”. Similarly, he stated by changing “9” into “10” by interpolation in the order sheet dated 30th March, 1995, it was shown that “10” accused persons filed application under Section 6 317 of the Code. He stated that the case record do not show any application by Jafir Ansari filed on any of the said dates. In relation to the order dated 21st July, 1995, he stated that after the name of the 9th accused, Sarfuddin, the name of Jafir Ansari was added as the 10th accused and in the process the Hindi word “(Ki)”, i.e. “On behalf of” was over written. He stated that on 21st July, 1995, warrant of arrest was issued against Jafir Ansari for he was not appearing and the same is corroborated by the note given by the peon “issued” signifying issuance of warrant of arrest. In relation to the order dated 1st September, 1995, he stated that the accused persons, who were given benefit of the said order were given a number but after the 5th accused person, the name of Jafir Ansari was added without assigning any number to him. He stated that these interpolations were made by the Clerk to justify the order of recalling the warrant of arrest, which had no connection with the petitioner and was issued when he was on leave. He denied leaving any blank paper with his signature. In view of the reply so given, the charges levelled against the petitioner in the said charge sheet were enquired into through an Enquiry Officer. The Enquiry Officer 7 reported as follows:- “In the result, therefore, I come to the conclusion that the second part of charge no.1 only could be proved against Sri Arvind Ajad, to the effect that Sri Arvind Ajad had left a plain paper with his initial. The other charges against the Arvind Ajad could not be proved. Upon consideration of the Enquiry Report along with record of enquiry, the disciplinary authority opined that the charge no.2 has not been proved but the charge no.1, as set out above, is one continued series of transactions and holds as a whole and the Enquiry Report may not be accepted as a whole because:- “(A) Charge No.1 relates to three parts, namely: (i) issuance of fake warrant of arrest/process; (ii) Recalling the same; and (iii) Leaving of signed blank papers with the office for that purpose. But the Enquiry Officer has construed the same to be of two parts, amalgamating the first two constituents as first part and the third constituent as the second part, which according to the enquiry officer is 8 proved. (B) In G.R. Case No. 321 of 1989 issuance of warrant of arrest against accused Jafir Ansari has been proved. The attempt on the part of the delinquent officer to justify such issuance on 8.8.1995 on the basis of an earlier order dated 12.11.1992 proved futile as the order sheet of the case records dated 21.07.1995 and 01.09.1995 totally belie such attempt (C) Regarding Second Part of charge no. I with respect to recall of warrant of arrest although the same was not by the delinquent Officer but by his Bench Clerk, Mahendra, since the delinquent Officer was enjoying annual vacation at Patna at the relevant time, but such recall was never made as per the order of the In-charge, Magistrate, which can very well be inferred that such recall was made by the delinquent Officer in collusion with his Bench Clerk, Sri Mahendra Ram, as the charge stood to be so and such collusion could be 9 proved on the face of the documents and exhibits proved during enquiry and such circumstances of collusion and connivance get re-enforced when the signed blank papers are proved to be left by the delinquent Officer in the Office, definitely with an oblique purpose to facilitate the Bench Clerk in commission of misdeed”. The reasons, as above, for differing with the Enquiry Report as well as a copy of the Enquiry Report were supplied to the petitioner, whereupon he gave a reply thereto. In the said reply, he pointed out his defenses to the charge as was indicated by him in the reply to the charge sheet as well as in course of enquiry and with that highlighted that it has come on record of the enquiry that the plain paper bearing his signature was not found either from his Court or from his Chamber. He also pointed out that the warrant of arrest was returned by the concerned Police Station along with the recall order as would be evident from perusal of the noting made on the back of the warrant of arrest. He also stated that in course of enquiry, he denied the purported signature appearing on the concerned plain 10 paper as that of his. He stated that no witness recognized the said signature as that of his. Upon consideration of the said reply, the disciplinary authority recommended dismissal of the petitioner from his services and such recommendation having been accepted, the petitioner was dismissed. The charge no doubt had three parts. The first part was issuance of fake warrant of arrest. Warrant of arrest/process was, in fact, issued. The same was not fake. In the true sense that part of the charge was issuance of warrant of arrest/process without there being any reason to do so. The defence of the petitioner was that Jafir Ansari against whom the warrant of the process was issued, did not appear despite issuance of warrant/process twice earlier and the same necessitated issuance of the subject warrant/process. The reason given by the disciplinary authority not to accept the defence of the petitioner pertaining to the first part of the charge was that the case records of 21st July, 1995 and 1st September, 1995 do not justify issuance of the subject warrant/process on the basis of the earlier warrant/process dated 12th November, 1992. In other words, the reason was that case 11 records of 21st July, 1995 and 1st September, 1995 clearly indicate that Jafir Ansari was present in Court or was represented before the Court on 21st July, 1995 and 1st September, 1995. The case records of 21st July, 1995 and 1st September, 1995 do suggest presence of Jafir Ansari before the Court on those dates. The petitioner contended that Jafir Ansari was, in fact, not present on those dates as he was also not present on the earlier dates and by manipulating the order sheets of the case, including those of 21st July, 1995 and 1st September, 1995 he was shown to be present. It has not come on record that the order sheet of 21st July, 1995 and 1st September, 1995 or of earlier dates, as were indicated in the reply to the charge sheet, were written by the petitioner. They also do not contain any initial of the petitioner authenticating inclusion of the name of Jafir Ansari. The order sheet of 21st July, 1995 suggests that in order to utilize the space available on the right hand margin to include the name of Jafir Ansari, the Hindi word “(Ki)”, i.e. “on behalf of” was over written. The order sheet of 1st September, 1995 suggests that all the accused persons were assigned a number, except Jafir 12 Ansari, whose name was written after the name of Osman, who was assigned the number 5, by using the right hand side margin of the order sheet of the said date. In the absence of evidence that the name of Jafir Ansari was inserted in the order sheets of the said dates by the petitioner or at his instance it would be difficult to sustain the reason that the defence of the petitioner is belied by the case records of 21st July, 1995 and 1st September, 1995. The second part of the charge was recalling of the subject warrant/process. It has been accepted in the reasons given by the disciplinary authority, while differing with the report of the Enquiry Officer, that the same was not issued by the petitioner and that when the recall was issued, petitioner was on leave. In view of such finding on records, there is nothing to suggest that the petitioner was personally involved in issuance of the subject recall of the warrant/process. However, it has been stated by the disciplinary authority in the reasons for differing from the report of the Enquiry Officer that inasmuch as the order of recall was not made as per the order of the In-charge, Magistrate and since a blank sheet of paper containing the signature of the petitioner was found an 13 inference can be withdrawn that the subject recall order was issued by the Bench Clerk of the Court in collusion with the petitioner. Apart from the fact that the said order of recall was not issued on the strength of an order passed by the In-charge, Magistrate and that a blank sheet of paper allegedly containing the signature of the petitioner was produced before the Enquiry Officer, there is nothing else on record to infer collusion on the part of the petitioner for issuance of the said order of recall. If the name of Jafir Ansari had been inserted in the order sheets of 21st July, 1995 and 1st September, 1995 not in the manner as was alleged by the petitioner, then of course inference of collusion by the petitioner for issuing the said recall order could be inferred, but neither in the Enquiry Report, nor in the reasons given by the disciplinary authority while differing from the report of the Enquiry Officer, it has been stated that there was any necessity of over writing the Hindi word “(Ki)”, i.e. “on behalf of”, in the order sheet dated 21st July, 1995, while inserting the name of Jafir Ansari on the right margin of the said order as the last name of the accused persons in the said case and that despite all accused persons having been assigned a number in the order dated 1st September, 1995, there was no 14 necessity of assigning a number to Jafir Ansari while writing his name after Osman, who was assigned the number 5 in the order dated 1st September, 1995. In the circumstances, the records of the case do not suggest that a reasonable person could draw the inference, as was drawn by the disciplinary authority. The Enquiry Report, despite denial by the petitioner, do not record tendering of evidence by anyone stating that the signature contained in the tendered blank paper was of the petitioner. The records of enquiry also do not suggest that the said blank paper was recovered from the Office or the Chamber of the petitioner or from the custody of the Clerk of the Court. At the same time, the records of the enquiry do not suggest that the blank paper containing the signature of the petitioner could be utilized for the purpose of issuing any order of the Court or any warrant or process of the Court or any order recalling the same. In the circumstances, linking the said blank paper, containing the signature of the petitioner as a part of the chain to infer collusion on the part of the petitioner for issuance of the recall order, is an opinion expressed without any evidence. Insertion of the name of Jafir Ansari in the orders dated 21st July, 1995 and 1st September, 1995 and effecting alterations 15 in various other orders contained in the order sheet, as was mentioned in the reply to the charge sheet, were to justify the recall order. There is nothing in the records of the enquiry that the petitioner made the insertions or alterations or authenticated the same and at the same time, there is also nothing in the records of the enquiry to suggest that the petitioner had anything to do with issuance of the recall order. Inference of collusion by the petitioner in issuing the recall order is, therefore, without any evidence on record. The blank paper containing signature of the petitioner if could be used either for issuing warrant/process or for issuing a recall order, inference of collusion by the petitioner could be drawn, but the records of enquiry do not suggest that the blank paper containing the signature of the petitioner could be used for any such purpose. The exhibited warrant suggests that the same was made out of printed forms and not by using any ordinary paper. At the same time, the exhibited blank paper containing signature of the petitioner do not suggest, having regard to the position of the signatures of the petitioner, that even by printing subsequently, the same could be utilized for making a warrant of arrest. The fact remains that the recall order did not contain any signature of the 16 petitioner, despite a blank paper containing his signature was available. The conclusion, therefore, would be that the opinion of the disciplinary authority that the petitioner is guilty of the subject charge is without any evidence on record. Accordingly, the writ petition is allowed and the order of dismissal is quashed. Petitioner shall be entitled to consequential benefits. There shall be no order as to costs. Patna High Court, The 23rd December, 2008. S.B.P./N.A.F.R. (Barin Ghosh, J.) C.M. Prasad, J :- (C.M. Prasad, J.)