IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 3309 of 1999 For Approval and Signature: HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE D.H.WAGHELA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- KAMLESHBHAI B MEHTA Versus REGISTRAR, HIGH COURT OF GUJ. -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 3309 of 1999 MR.NIRUPAM NANAVATY, SENIOR ADVOCATE with MR.D.D.VAIDHYA, ADVOCATE for the petitioner-delinquent MR.S.N.SHELAT, ADVOCATE GENERAL WITH MR.J.B.PARDIWALA, ADVOCATE for the Respondent No.1 MR.R.C.KODEKAR, AGP for the Respondent No.2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE D.H.WAGHELA Date of decision: 03/09/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE R.K.ABICHANDANI for the Court) Contents : Brief facts : Paragraph 2 Contentions raised : Paragraph 3 for the petitioner Contentions raised : Paragraph 4 for the respondents Reasons : Paragraph 5 to 12 Final Order : Paragraph 13 1. The petitioner, a former Civil Judge (S.D.), has challenged the order of his compulsory retirement by the State Government on the recommendation of the High Court made on 23rd December 1982 pursuant to the departmental inquiry held against the petitioner in which he was found guilty of the charges of dereliction of duty in making an order dated 30th October 1982 on an application made under Section 457 of the Criminal Procedure Code for returning the muddamal - oil barrels to the complaint. The petitioner had also challenged the validity of the Resolution No.3 passed at the Chamber Meeting held on 26-12-1988 on the ground that it was ultra vires the provisions of Article 235 of the Constitution of India. Under the said Resolution, it is provided that, on the report of the disciplinary committee comprising of the Hon'ble Judges of the Court, along with the entire record of the inquiry, including the written submissions of the delinquent in response to the show cause notice for the proposed punishment, being laid for 48 hours on the table before the High Court, it would become the decision of the High Court. At the outset of the hearing, the learned Senior Advocate appearing for the petitioner stated that the petitioner did not press for the challenge against the provisions of the said Resolution No.3 of the Rules of Business of the High Court and the prayers made in Clauses 36(A) and and 36(G), challenging the said Resolution, were expressly given up at the instance of the petitioner. All the averments made in that context made in the petition were also expressly given up. Brief facts : 2. The petitioner came to be appointed as Civil Judge (J.D.) & Judicial Magistrate First Class on probation for a period of two years by order dated 10-12-1981 and was posted at Jamnagar. A Criminal Misc. Application No.97 of 1982 came to be filed on 19-10-1982 in the Court of the Judicial Magistrate First Class, at Jamnagar, by the Manager of a Trust named Ramdev Oil Mill, of Jamnagar against the three accused persons, who were the officers of the Civil Supplies Department, for the offences under Sections 390, 391, 166 read with Sections 34 and 114 of the Indian Penal Code on an allegation that, on the night between 30-9-1982 and 1-10-1982, at about 12.30 a.m., the accused No.1 alongwith his persons had, under the guise of search and seizure, keeping police with him and without a warrant, given threats and created a spurious search and seizure order. It was stated in paragraph 3 of the complaint, which is in the vernacular, that the Trust had filed Regular Civil Suit No.863 of 1982 on 1-10-1982 against the search and seizure order made by the accused No.1 on 1-10-1982 in which the Court had granted injunction in the terms which were reproduced in the said paragraph. As per the said order of injunction issued by the Civil Court, the accused No.1 and his agents and servants were restrained from implementing the seizure order dated 1-10-1982 and were also required not to treat the stock of goods as seized and were restrained from preventing the plaintiff from dealing with the goods or selling them. It was then alleged in paragraph 4 of the complaint that the accused persons were in the know of the said order of interim injunction dated 1-10-1982 (in fact, it was dated 4-10-1982), passed by the Civil Judge (S.D.) as they were issued the notice of that order. It was further stated in paragraph 5 of the complaint that the accused persons, in violation of the order of the Court, which was known to them and ignoring the law, with a view to harass the trustees and cause them malicious harm, and though they had no reasonable ground, authority or power, committed robbery of 45 barrels of oil while they were being carried in a truck, in furtherance of their common intention and by abetting each other, giving threats at the point of a revolver, and that these accused were pilfering oil from the barrels and appropriating the same to their personal use. They had threatened the driver of the truck by pointing a pistol at him, saying that he would be put in jail. All these accused had thereby committed offences under Sections 390 (robbery), 391 (dacoity), 166 (public servant disobeying law, with intention to cause injury to any person), read with sections 34 and 114 of the Indian Penal Code. It was prayed in the complaint that they should be proceeded with in accordance with law and directed to produce the 45 barrels of oil as it would decay, and also to produce the truck which would be damaged if it lies idle. A prayer was sought that an investigation may be directed under Section 156(3) of the Code of Criminal Procedure. 2.1 On this application, an order was made on 19-10-1982 by Mr.R.G.Chaudhary, Civil Judge (J.D.) & Judicial Magistrate First Class, who was presiding over the Court No.3, directing the Police Sub-Inspector under Section 156(3) of the Code to investigate the offences alleged in the complaint, and submit a report on or before 10-11-1982. The said case was registered as City/M/76/1982. 2.2 According to the petitioner, on 26-10-1982, Mr.H.M.Prajapati who was in charge of the Court No.3, Civil Judge (J.D.) & J.M.F.C., on an application exh.5 given under Section 457 of the Code, in the said private complaint praying for the return of the muddamal - 45 barrels of groundnut oil, directed the police to submit its report. Accordingly, a report was submitted on 30-10-1982 by the P.S.I. Shri Jhala. It was the petitioner's case that, on 30-10-1982, he had heard the advocate for the complainant and also perused the report submitted by the police and passed an order to the effect that the muddamal articles be returned to the complainant on the complainant's furnishing security for a sum of Rs.1 lac and on giving an undertaking to the Court to produce the muddamal goods as and when required. It is stated in paragraph 12 of the petition that the said order made by the petitioner was not carried out, with the result that an application for contempt was filed on December 10, 1982 by the complainant when Mr.S.B.Mehta, J.M.F.C. was in charge of the Court. It appears from the record that, on 4-11-1982, a letter was written by the Judicial Magistrate First Class, Court No.3 Mr.S.B.Mehta requiring compliance of the said order dated 30-10-1982. The accused No.1 had made an endorsement below that communication on 4-11-1982, inter alia, stating that the matter was to be proceeded with under Section 6A of the Essential Commodities Act and the proceedings were forwarded to the Collector, Surendranagar and that, an appeal was filed by the Government in the District Court which was pending for decision. Even two days earlier, on 2-11-1982, the learned Magistrate Mr.S.B.Mehta had written a letter to the Mamlatdar, Chotila for compliance of the order dated 30-10-1982 for handing over the muddamal oil barrels to the complainant. The said Magistrate Mr.S.B.Mehta had ultimately made an order on 6-11-1982 treating the application of the complainant making grievance of non-compliance as a complaint under Section 195 of the Code of Criminal Procedure and directed process in form of bailable warrant for Rs.2,000/- to issue on the godown keeper and summons against the rest of the accused under Sections 166, 186, 228 read with Sections 34, 114, 120 of the IPC and directed separate criminal case number to be given to that complaint. 2.3 Thereafter, on 9th December 1982, Special criminal Application No.1658 of 1982 was filed by the accused against the said Criminal Case No. M/97/1982 (which was the case registered by the police on the basis of the Case No.City/M/76/1982). In that petition, by order dated 5-12-1990, a copy of which is at Anenxure "C" to the petition, Justice N.J.Pandya quashed the complaint and set aside the order of delivery of the muddamal made on 30-10-1982 and also the order dated 6-11-1982 made by Mr.S.B.Mehta. As a sequal to that decision, the learned Single Judge made a "Note", a copy of which is at Annexure "F" to the petition, suggesting to the Hon'ble the Chief Justice and the Standing Committee of the High Court to initiate appropriate proceedings against "erring Magistrate Mr.S.B.Mehta" and also suggesting that a note may be made in the confidential report of the said Judicial Magistrate i.e. Mr.S.B.Mehta. 2.4 It is then stated in the petition that years had rolled by and the petitioner who continued to serve at various places mentioned in paragraph 12 of the petition, earned promotion as Civil Judge (S.D.) and Chief Judicial Magistrate by order dated 26-2-1990. It is stated that his work was adjudged "good" and "very good", and save and except the said single incident in question, the High Court found for almost 18 years, till the petitioner was compulsorily retired, no fault of any kind whatsoever, moral, legal or of impropriety against the petitioner in discharging his duties as a judicial officer of the State nor was it even alleged. 2.5 No departmental proceedings were instituted against the petitioner on the basis of the said Note of Justice N.J.Pandya for years. However, on 7-4-1992, the petitioner received a letter from the District Judge asking him to give his explanation to the "Note" of Justice N.J.Pandya and thereafter, on 20-9-1996, he was served with a charge-sheet, a copy of which is at Annexure "H" to the petition. The petitioner sought by his letter dated September 27, 1996 certain papers, including the Rojkam from the Registrar. But the Registrar wrote a letter dated 22-11-1996 stating, inter alia, that certain documents mentioned therein, including Rojkam and the Preliminary Inquiry Report, were not available. As regards the preliminary inquiry report, it was stated that no preliminary inquiry was held and hence, no statements were recorded (Annexure "I"). 2.6 The petitioner replied to the charge-sheet by his letter dated 27-1-1997, at Anenxure "J" to the petition. Thereafter, the inquiry officer made a report (Annexure "K") to the High Court holding that the delinquent was not guilty of any of the charges. The High Court, however, did not agree with the report of the inquiry officer and issued notice on 25-9-1998 (at Annexure "L") asking the petitioner to show cause against the proposed penalty of dismissal. In paragraph 24 of the petition, it is pointed out that, in a note, detailed reasons were recorded by the High Court for differing with the report of the Inquiry Officer. Thereafter, the petitioner, on October 12, 1998, replied to the show cause notice. The High Court had, on December 23, 1998, recommended to the State Government to retire the petitioner compulsorily, and on the basis of that recommendation, the petitioner came to be compulsorily retired by the impugned order. It was alleged that the impugned order was not passed with the approval or consent of all the Judges. However, as noted above, all the contentions on this aspect, were given up. According to the petitioner, there was no evidence to show, either oral or documentary, that the order passed by the petitioner was made with any oblique or corrupt motive. It was contended that the petitioner was a probationer and a novice at the relevant time and, therefore, it could not be expected of such a Magistrate to know the scope and ambit of the Magistrate's jurisdiction in dealing with the goods seized under the Essential Commodities Act, while deciding an application under Section 457 of the Code. It was stated that there was no lack of good faith on the part of the petitioner. It was contended that the Assistant Public Prosecutor was not required to be heard, because, the case was filed as a private complaint and not as a police case. Contentions raised for the petitioner : 3. The learned Senior Advocate appearing on behalf of the petitioner contended that no opportunity was given to the petitioner by the disciplinary authority prior to recording the disagreement with the findings recorded by the inquiry officer. It was also argued that delay in serving the charge-sheet, holding the inquiry and inflicting the punishment, which had caused serious prejudice to the career of the petitioner, vitiated the inquiry proceedings and the impugned order. It was submitted that delay in initiating the proceedings amounted to denial of fair hearing and violation of the principles of natural justice and therefore, the entire proceedings were vitiated. The learned counsel contended that documents including the report of preliminary inquiry though demanded were not supplied and despite the fact that a preliminary inquiry was conducted and the preliminary inquiry report did exist, the Registrar Mr.J.K.Patel had wrongly informed the petitioner that there was no such preliminary inquiry held. It was argued that if the preliminary inquiry report had been supplied, the petitioner would have known as to what was the reason for his being implicated when in the Note of Justice N.J.Pandya, a suggestion was made for holding an inquiry against the Judicial Magistrate Mr.S.B.Mehta and there was no mention of the petitioner's name made in that Note. The learned counsel also argued that the order, which is judicial in character and made by judicial officer in discharge of his duty, even if it is wrong or erroneous, cannot be construed as a misconduct more particularly in absence of any cogent, independent or reliable evidence of malice. It was finally contended that compulsory retirement could not have been ordered by way of punishment. This argument the learned Senior Advocate rightly did not pursue on noticing that compulsory retirement was one of the major punishments prescribed under the Rules. 3.1 In support of his contentions, the learned Senior Advocate placed reliance on the following decisions : [a] The decision of the Supreme Court in Yoginath D. Bagde v. State of Maharashtra, reported in AIR 1999 SC 3734, was cited for the proposition that where the disciplinary authority disagreed with the findings recorded by the enquiry officer in favour of the officer of subordinate judiciary, the reasons for such disagreement were required to be communicated and an opportunity to show cause against taking such different view was required to be given. The Court was dealing with the provisions of Rule 9 of the Maharashtra Civil Services (Discipline and Appeal) Rules (1979), in which it was provided that the disciplinary authority shall, if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge. If it disagrees with the findings of the inquiring authority on any article of charge, it shall record its reasons for such disagreement. In paragraph 33 of the judgement, the Supreme Court held that a delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the Enquiry Officer into the charges levelled against him but also at the stage at which those findings are considered by the Disciplinary Authority and the latter, namely, the Disciplinary Authority forms a tentative opinion that it does not agree with the findings recorded by the Enquiry Officer. It was held that the the right to be heard to which the delinquent was entitled being a constitutional right of an employee, cannot be taken away. In paragraph 34 of the judgment, it was found that the Disciplinary Committee instead of forming a tentative opinion had come to a final conclusion that the charges against the appellant were established. In paragraph 36 of the judgment, the Supreme Court held that it was not indicated to the delinquent that the Disciplinary Committee had come only to a "tentative" decision and that he could show cause against that too. The Supreme Court concluded that the Disciplinary Committee was wholly in error in disagreeing with the findings recorded by the Enquiry Officer. [b] The decision of the Supreme Court in K.P.Tiwari v. State of Madhya Pradesh, reported in AIR 1994 SC 1031, was cited to point out that it was held therein that a judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a judge who has not committed an error is yet to be born. And that applies to judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. On such occasions, the lower courts are not necessarily wrong and the higher courts always right. The Supreme Court then observed: "It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive. It is possible that a particular judicial officer may be consistently passing orders creating suspicion of judicial conduct which is not wholly or even partly attributable to innocent functioning. Even in such cases, the proper course for the higher court to adopt is to make note of his conduct in the confidential record of his work and to use it on proper occasions. The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticized intemperately and castigated publicly, no greater damage be done to the administration of justice and to the confidence of the people in the judiciary when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other." (emphasis added). [c] The decision of the Supreme Court in P.C.Joshi v. State of U.P. reported in AIR 2001 SC 2788, was cited to point out that, in paragraph 5 of the judgement, the Court referred the basis upon which a disciplinary action can be initiated in respect of the judicial or quasi-judicial action: "(i) where the judicial officer has conducted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty; (ii) that there is prima facie material to show recklessness or misconduct in the discharge of his duty; (iii) that if he has acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers; (iv) that if he had acted in order to unduly favour a party; (v) that if he had been actuated by corrupt motive." [d] The decision of the Supreme Court in Union of India v. H.C.Goel, reported in AIR 1964 SC 364, was cited to point out that, in paragraph 7 of the judgement, the Supreme Court, while appreciating the anxiety of the Union of India to root out corruption from public service, observed that the Court cannot ignore the fact that in carrying out the said purpose mere suspicion should not be allowed to take place of proof even in domestic inquiries. [e] The decision of the Supreme Court in Zunjarrao Bhikaji Nagarkar v. Union of India, reported in AIR 1999 SC 2881, was cited for the proposition that, to maintain any charge-sheet against a quasi-judicial authority, something more has to be alleged than a mere mistake of law. 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. The entire system of administrative adjudication whereunder 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. The negligence in a quasi judicial adjudication is not negligence perceived as carelessness, inadvertence or omission but as culpable negligence. [f] The decision of the Supreme Court in State of Gujarat v. Umedbhai M. Patel, reported in AIR 2001 SC 1109, was cited to point out that, in paragraph 11 of the judgement, the law relating to compulsory retirement was crystallized and it was, inter alia, held that compulsory retirement shall not be imposed as a punitive measure. [g] The decision of the Supreme Court in State of Punjab v. Chamanlal Goyal, reported in (1995)2 SCC 570, was cited to point out that the Supreme Court had observed in paragraph 9 of the judgement that, it is trite to say that such disciplinary proceeding must be conducted soon after the irregularities are committed or soon after discovering the irregularities. They cannot be initiated after lapse of considerable time. It would not be fair to the delinquent officer. Such delay also makes the task of proving the charges difficult and is thus not also in the interest of administration. Delayed initiation of proceedings is bound to give room for allegation of bias, mala fides and misuse of power. If the delay is too long and is unexplained, the court may well interfere and quash the charge. [h] The decision of the Supreme Court in State of Madhya Pradesh v. Bani Singh, reported in 1990 (Supp) SCC 738 was cited to point out that the Supreme Court, finding that there was no satisfactory explanation for the inordinate delay of 12 years in issuing the charge memo, held in paragraph 4 of the judgement that it will be unfair to permit the departmental enquiry to be proceeded with. Contentions raised for the respondents : 4. The learned Advocate General appearing for the respondent High Court contended that delay cannot be a ground for setting aside an order of punishment nor for stopping initiation of departmental proceedings unless prejudice has been caused to the delinquent because of such delay. He submitted that, in the present case, there was no prejudice caused to the delinquent. He submitted that, in fact, the delay has enabled the petitioner to continue in service for a long period and even to earn promotion. It was argued that the Note of Justice N.J.Pandya was made on 13-12-1990 and therefore, the period prior to that cannot be counted for computing the delay in initiating the departmental proceedings. It was also argued that, in the very nature of things, such departmental proceedings against the judicial officers were time consuming and entailed delay. The learned Advocate General supported the impugned order of compulsory retirement passed against the petitioner on the reasons given in