IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO. 15213 of 2008 ========================================= Ajay Kumar Srivastava s/o late Bindeshwary Prasad Srivastava, r/o Savitri Sadan (near Pani Tanki), Mohalla – Jagdishpur, District – Ballia ( U.P.), at present Additional District and Sessions Judge, Bhojpur at Arrah ….. Petitioner Versus 1. High Court of Judicature at Patna through the Registrar General, Patna High Court Patna ………….. Respondent 1st Se 2. State of Bihar through Chief Secretary, Govt. of Bihar, Patna 3. The Personnel and Administrative Reforms Department, Govt. of Bihar, Patna ……………… Respondent 2nd Set ============================================ APPEARANCE For the Petitioner : Mr. Ajeet Kumar Sinha, Sr. Advocate Mr. Bijay Shankar Chaubey, Advocate For the High Court : Mr. Lalit Kishsore, AAG III Mr. Piyush Lal, AC to AAG III For the State : Mr. Rajesh Kumar Singh, AC to AAG II =================================================== CORAM: HONOURABLE THE CHIEF JUSTICE And HONOURABLE MR. JUSTICE SHIVA KIRTI SINGH ORAL ORDER ( 29 /11/2010) (Per: HONOURABLE THE CHIEF JUSTICE) This petition under Article 226 of the Constitution is filed by one Sri Ajay Kumar Srivastava, a member of the Bihar State Superior Judicial Service, to challenge the Government Notification dated 29th January 2008. By the impugned Notification the 2 petitioner, then a District Judge, has been reduced in rank to the lowest cadre in Bihar State Superior Judicial Service. The petitioner was appointed as the Additional District and Sessions Judge in the year 1991. In course of service on 6th July 2001 he was promoted as District and Sessions Judge. A disciplinary proceeding was initiated against the petitioner on 13th March 2004 for certain acts of commission and omission amounting to dereliction in duty, lack of integrity and insubordination committed during the years 1999 to 2002. It was alleged that while acting as Additional District and Sessions Judge, Siwan the petitioner purportedly delivered a judgment in Title Appeal No.67 of 1997 on 21st August 1999 but did not make it available for perusal until 23rd August 1999; that while functioning as Additional District and Sessions Judge, Purnea, he dismissed Title Appeal No.22 of 1998 on extraneous consideration after receiving illegal gratification of Rs.25000/-; that while functioning as Additional District and Sessions Judge, Siwan, he conducted Sessions Trial no.21 of 2000. In the process of trial, he summoned the prosecution witnesses by issuing non-bailable warrants. For no valid reasons, he remanded the witnesses in judicial custody. The witnesses were incarcerated in jail where the accused was also housed. In spite of the complaint by the witnesses that in the jail they were harassed and threatened by the accused, under one pretext or the other, the witnesses were not released immediately. After the prosecution witness (the eye witness) gave his evidence in support of the prosecution, his further examination and cross-examination was prolonged until the said witness turned hostile. In the result, the accused was acquitted. It was alleged that during the Sessions Trial no.21 of 2000, though the judgment was pronounced on 9th February 2001, he signed on 23rd February 2001 and ante-dated his signature as 3 of 9th February 2001. It was further alleged that while functioning as District and Sessions judge, Khagaria, in spite of the direction issued by the High Court he did not settle the pension case and terminal benefits of one Jitendra Prasad Mishra, who had retired as the Sheristedar of the District Judge, Khagaria. After due inquiry, the enquiry officer (Hon’ble Mr. Justice Navniti Prasad Singh) recorded finding of guilt against the petitioner in respect of charges no. I, III & V. In respect of charge no. I, the enquiry officer found that although the petitioner had not delivered the judgment, he pronounced the judgment on 21st August 1999 and delivered the judgment later in the chamber. In respect of charge no.II, the enquiry officer found that the petitioner abused his authority in issuing non-bailable warrant against the prosecution witnesses; in ordering their arrest though they were present in the court; in remanding them to judicial custody; in not releasing them in spite of their complain of intimidation by the accused who was an under trial prisoner in the same jail and in not recording the evidence of prosecution witnesses promptly that resulted into witnesses turning hostile and the acquittal of the accused. In respect of charge no. III, the enquiry officer found that the petitioner refused to settle the pension case of the retired employee in spite of the instruction issued by the Hon’ble Inspecting Judge. In respect of charge no.II relating to Title Appeal no.22 of 1998 and charge no. IIIA relating to ante-dating the judgment in Sessions Trial no.21 of 2000, the enquiry officer recorded finding in favour of the petitioner. For the guilt proved against the petitioner, he was visited with the punishment of reduction in rank as recorded hereinabove. The representation made by the petitioner against the order of punishment was rejected. Feeling aggrieved, he has filed the present writ petition. The learned advocate Mr. Ajeet Kumar Sinha has 4 appeared for the petitioner. He has taken us through the records. He has submitted that none of the charges levelled against the petitioner stands proved. The argument is mainly centered around the appreciation of evidence. The challenge is also on the grounds that during the course of inquiry the enquiry officer had changed. The learned judge who made the report did not conduct the inquiry. The inquiry has thus been vitiated. It is also alleged that the inquiry initiated against the petitioner in the year 2004 for the incidences of the years 1999-2001 was belated. The delay in itself shall vitiate the inquiry. In support of his arguments, he has relied upon the judgments of the Supreme Court in the matters of Ramesh Chander Singh v. High Court of Allahabad and another [(2007) 4 SCC 247] and of Yoginath D. Bagde v. State of Maharashtra and another [ (1999) 7 SCC 739]. Mr. Sinha has strenuously urged that the allegation of lack of integrity/motive of defiance of law are not proved at all. The petition is contested by the learned Additional Advocate General Mr. Lalit Kishore. He has submitted that while exercising power of judicial review under Article 226 of the Constitution, this court would not re-appreciate the evidence or substitute findings recorded by the enquiry officer by its own finding. He has submitted that in absence of challenge on the ground of infirmity in the disciplinary proceeding, challenge to the finding of guilt or the order of punishment is not sustainable. In support of his arguments, he has relied upon the judgments of the Hon’ble Supreme Court in the matters of New Bank of India v. N.P.Sehgal and another [(1991) 2 SCC 220], of B.C. Chaturvedi v. Union of India and others [(1995) 6 SCC 749] and of High Court of Judicature at Bombay through its Registrar v. Shirishkumar Rangrao Patil and another [(1997) 6 SCC 339]. 5 In the matter of Ramesh Chander Singh (supra) the Hon’ble Supreme Court has issued caution in respect of disciplinary proceedings initiated against the judicial officers on the basis of judicial order passed by him. It is observed; “If the High Court were to initiate disciplinary proceedings based on a judicial order, there should have been strong grounds to suspect officer’s bona fides and the order itself should have been actuated by malice, bias or illegality.” It may be noted that in the present case it is not the judicial order passed by the petitioner which is the subject matter of inquiry. It is the conduct of the petitioner which is the subject matter of inquiry. In the matter of Yoginath D. Bagde (supra), the matter related to a disciplinary proceeding held against and consequent punishment imposed upon the appellant, a judicial officer. The Hon’ble Supreme Court has held that the control over the subordinate courts of the High Courts envisaged by Article 235 of the Constitution is a complete control, the High Court can hold disciplinary proceedings and impose punishment upon the delinquent. On the facts, the Hon’ble Supreme Court has held that it was a case of no evidence and that the High Court had failed to give opportunity of hearing to the delinquent at the stage at which it proposed to differ with the findings of the enquiry officer. In the matter of New Bank of India (supra), the Hon’ble Supreme Court has held that the promotion granted to the delinquent while disciplinary proceedings were in contemplation cannot be regarded as condonation of the earlier misconduct. In the matter of B.C. Chaturvedi (supra), it is held that the Court/Tribunal has no power to interfere with the findings of the disciplinary or appellate authority by re-appreciating the evidence. 6 Similarly, in case of promotion granted pending the disciplinary proceedings the Hon’ble Supreme Court held; “Advantage of promotion gained by the delinquent officer would be no impediment to take appropriate decision and to pass an order consistent with the finding of proved misconduct.” In the matter of Shirishkumar Rangrao Patil (supra) also the Hon’ble Supreme Court has held that the control of High Court over its subordinate courts includes maintenance of discipline. In the matter of finding of guilt the Hon’ble Supreme Court has observed; “This court cannot embark upon appreciation of evidence and reach its own conclusion on the sufficiency of evidence or on the correctness of the conclusion which is based on some evidence.” Let us first note that the petitioner has not complained of any infirmity in the disciplinary proceedings. In other words, the proceedings have been conducted scrupulously in accordance with law, relevant rules and principles of natural justice. As to the delay, it may be noted that the allegations pertain to the matters conducted by the petitioner and the evidence is the records of such matters. At no point of time during the disciplinary proceedings or even at the end of the disciplinary proceedings the petitioner raised objection as to the delay in initiating inquiry or that on account of delay his defence was prejudiced. In absence of prejudice caused to the petitioner, the delay in itself would not vitiate the enquiry. It is true that in course of inquiry two enquiry officers retired from the office. The inquiry had to be completed by the 3rd officer (Hon’ble Mr. Justice Navniti Prasad Singh). The enquiry officer has based his report on the evidence on record. He had also given 7 opportunity of personal hearing to the petitioner. It is well settled that in the eventuality of enquiry officer being not available (either because of retirement or for any other reason) the next enquiry officer will proceed further with the inquiry. He is not required to commence the inquiry afresh. In the present case also the inquiry has proceeded in accordance with law. The petitioner has not complained of any prejudice on account of new enquiry officer taking over the inquiry. The challenge requires to be rejected outright. The third and the main defence relates to the finding of guilt recorded by the enquiry officer. In the submission of Mr. Sinha the enquiry officer failed to appreciate the evidence on record in its correct perspective. In other words, Mr. Sinha wants us to reconsider the evidence, to upset the finding of guilt recorded by the enquiry officer and to record our own finding to exonerate the petitioner. We need not reiterate that in exercise of power of judicial review conferred by Article 226 of the Constitution, the High Court is not supposed to sit in appeal over the decision of the disciplinary authority or to re-appreciate the evidence and record its own finding. Nevertheless, the petitioner being a member of the Superior Judicial Service; to ensure that no injustice is caused to him, we have carefully perused the records. We must say that the enquiry officer has recorded finding of guilt after proper scrutiny of the evidence on record and the defence statement filed by the petitioner. In fact, the findings are based on irrefutable and admitted facts. In respect of the charge relating to the Sessions Trial no.21 of 2000, the facts are glaring. The abuse of authority and lack of integrity are writ large in the conduct of the petitioner. There could not have been but one inference that the petitioner grossly abused his authority with oblique motive and ulterior purpose. We fully agree with the finding of guilt recorded 8 by the enquiry officer and accepted by the disciplinary authority. Considering the gravity of the misconduct proved against the petitioner, the punishment of reduction in rank is wholly justified and cannot be said to be harsh or disproportionate not commensurate to the misconduct proved. For the aforesaid reasons, the petition is dismissed. The parties will bear their own cost. Sd/ Shiva Kirti Singh, J: I agree. Neyaz/AFR ( R. M. Doshit,CJ.) Sd/- (Shiva Kirti Singh, J.) 9