IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. LPA 50 of 2004. Judgment Reserved on 18.9.2008 Date of decision January 09, 2009. High Court of Himachal Pradesh …Appellant. Versus Shri Manoj Kumar Bansal and others ..Respondents. Coram: The Hon’ble Mr. Justice R.B.Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the appellant Mr. Ajay Mohan Goel, Advocate. For respondent No. 1 Dr. Balram Gupta, Sr. Advocate, with Mr. C.N.Singh, Advocate. For respondent No. 2 Mr. P.K.Sharma, Addl. AG. Per Dev Darshan Sud, J. This Letters Patent Appeal has been preferred by the High Court of Himachal Pradesh against the judgment of the Hon’ble Single Judge setting aside the order of compulsory retirement passed against respondent No. 1 by the disciplinary authority. The undisputed facts are that respondent No. 1, a member of Himachal Pradesh Judicial Service, was served with a Memorandum of Charge dated 1.10.1997 charging him on twelve counts of misconduct. After 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - enquiry, he was held guilty of the charges detailed below: “Article of Charges Findings of the Inquiry Officer Article-I That the said Shri Manoj Kumar Bansal while functioning as Sub Judge-cum- Sub Divisional Judicial Magistrate, Sarkaghat during the period from 22.1.1996 to 7.6.1997 had procured the presence of Shri Bhalkhu Ram, Operator of Auto Rikshaw No. HP-05-0209 through the police officials of the Police Station, Sarkaghat on 23.7.1996 in his chamber and engaged under pressure his Auto Rikshaw for carrying his wife daily from residence to Government degree college, Bachowar, where she was posted as Lecturer and take her back in the evening. The operator was told that Rs.300/- P.M. shall be paid to him by the said Shri Manoj Kumar Bansal and Rs.200/- per month shall be paid by the police. When the said Auto Rikshaw operator got only Rs.600/- for two months, he refused to make available the said Auto Rikshaw for the wife of said Shri Manoj Kumar Bansal after 31st October, 1996. On 1.1.1997 when the said Shri Manoj Kumar Bansal was on a walk, he came across the said Auto Rikshaw. He stopped the same and enquired from its operator Bhalkhu Ram as to why he was not making available his Rikshaw for Mrs. Bansal. On being told by the said Shri Bhalkhu Ram that the arrangement did not 51.Article-I proved partly to the extent that the delinquent took help of police officials Lal Chand, ASI and MHC Karam Chand, Police Station Sarkaghat, for engaging three wheeler of PW-1 Shri Bhalkhu for carriage to and fro to Govt. College, Bachowar of his wife Smt. Chandrika Bansal, working as a lecturer. Payment agreed was Rs.300/- per month and for engagement of three wheeler for 2 months, fare was paid by Smt. Chandrika Bansal and thereafter it was disengaged when found irregular. 52.Shri Bhalkhu Ram was challaned by the police for rash driving and not stopping the vehicle on police signal on which challan was fined Rs.500/- by the delinquent on 5-2-97. Fine was disproportionate to the offence, but Bhalkhu after pleading guilty paid the same and subsequently, handed over complaint to Shri D.P. Sharma, Advocate, for onward submission to the Hon’ble High Court, but there is nothing that the delinquent procured the challan by - 3 - suit him, the said Shri Manoj Kumar Bansal, threatened him saying that his Auto Rikshaw shall be challaned and he will be fined. The said Shri Bhalkhu Ram told Mr. Bansal that the documents of his Auto Rikshaw were in order. Ultimately, said Auto Rikshaw was challaned without the knowledge of its operator and he was fined Rs.500/- on 5.2.1997 in the Court of said Shri Manoj Kumar Bansal without hearing him. Thus, the said Shri Manoj Kumar Bansal has abused his judicial powers and also acted in a manner becoming of a Judicial Officer. directing the police.” 53.The charge is partly established. Article-IV That during the aforesaid period and while functioning in the aforesaid office, the said Shri Manoj Kumar Bansal has been deploying Shri Surinder Kumar Process Server and Smt. Sheela Devi, Safai Karamchari at his residence for menial duties, such as washing utensils, floors, clothes etc. He had also compelled the said Shri Surinder Kumar, PS. to accompany him to his native place at Rampur in July, 1996, November, 1996 and March, 1997 under threat and had also been taking menial work from him even at his native place. Under threat and pressure the said official was being forced to apply for leave for such trips. He also subjected said Surinder Kumar and other class IV officials to gross- misbehaviour. Thus, the said Shri Manoj Kumar Bansal has been 75. “It stands proved that Shri Surender Kumar, Process Server, used to work in the house of delinquent and sometime after 5 p.m. had been going for service of local summonses, but his taking to Rampur thrice in July, November, 1996 and then in March, 1997 is not proved. Using services of Sheela Kumari Safai Karamchari for household work also not proved.” - 4 - utilizing the services of officials for his personal work and harassing them unnecessarily by misusing his official position and power, which tantamounts to gross misconduct. Such an act on his part is also highly unbecoming of a Judicial Officer. Article-V. That during the aforesaid period and while functioning in the aforesaid office, the said Shri Manoj Kumar Bansal has committed financial irregularity by making 7876 telephonic calls during the period between 16.1.1996 to 15.1.1997 from his residential telephone and charging the entire bill to the Govt. exchequer against the permissible limits of 5000 calls. Thus, the said Shri Manoj Kumar Bansal has wrongfully charged the bill of the excessive calls to the government exchequer with a view to having personal gain to that extent. Thus, the said Shri Manoj Kumar Bansal has committed grave financial irregularities and thereby mis-conducted himself. 77.This charge is borne out by the documents. Telephone No.52419 was installed in the residence of delinquent. Vide circular dated 16.12.95 copy of which is Ex.PW16/A, the Hon’ble High Court had prescribed free calls limit of 5000 per annum to Sub Judge-cum- Judicial Magistrate Ist Class. Ex.PW16/B to Ex.PW-16/C are copies of telephone bills of this telephone for the aforesaid period of 16.1.1996 to 15.1.1997. All these bills were paid from the office contingency funds. Consequently, 2876 calls which were in excess of free calls of 5000 were paid by the delinquent from the contingency funds. Defence of the delinquent was that he was never apprised by the office that had exceeded the - 5 - Article-VI. That during the aforesaid period and while functioning in the aforesaid office, the said Shri Manoj Kumar Bansal had erroneously dismissed CMA 174-II of 1995 on 7.3.1996, which was filed on the ground that an application for stay of execution under order 21 rule 29 CPC was pending and that if the stay as sought in the CMA was not granted, the purpose of the application filed under order 9 rule 13 CPC shall be defeated. The said Shri Bansal without going through the relevant record had dismissed the CMA observing in his order dated 7.3.1996 that the relevant application had already been dismissed. In fact that was not dismissed but issues were framed therein by him on quota of 5000 calls and in absence of intimation calls were paid from office funds. Also it was asserted that the delinquent joined at Sarkaghat on 22.1.96 and cannot be made to account for calls between 16.1.1996 to 21.1.1996 during which period official residence was locked. No person from unoccupied residence could have used the phone. Resultantly, it stands proved that excessive calls of 2876 were paid by the delinquent from Govt. funds and indulged in financial irregularity. 78.”Charge established.” 80.In support of the charge PW-16 Surender Kumar, office Superintendent was examined who produced record of CMA 174-VI/95 titled Ram Lal Vs. Rattan Chand. This application was dismissed by the delinquent on 7.3.96 vide order copy of which is Ex.PW16/I. Shri D.P. Sharma was the counsel for the applicant who had moved application for stay of the execution petition on ground that petition under order 9 rule 13 CPC was filed by him for setting aside the exparte decree. That application was dismissed on ground that - 6 - 28.2.1996, i.e. a week earlier. Thus, the said Shri Manoj Kumar Bansal has been deciding the judicial matters in a slip shod manner without consulting the relevant records and, as such, he is guilty of gross negligence in the discharge of his duties. application under order 9 rule 13 CPC was dismissed by the court and there was no reason to stay the proceedings. On 7.3.1996 that application under order 9 rule 13 CPC was pending as on 28.2.1996 issues were framed and case was adjourned to 14.5.1996 for evidence of the applicant, as is evident from order dated 28.2.1996 copy of which is Ex.PW16/H. Resultantly, it stands established that judicial order was passed in haste without consulting the record or calling the office report. 81.“Charge established”. - 7 - Article-VII. That during the aforesaid period and while functioning in the office, the said Shri Manoj Kumar Bansal had refused bail to the accused on 13.2.1997 in case titled State Vs. Prem Singh under sections 376, 354, 506 IPC moved through Shri K.C. Verma Advocate. However, another application which was moved jointly by Shri K.C. Verma and Shri R.S. Parmar, Advocates, in the same case two days later, the said Shri Manoj Kumar Bansal granted the bail on 15.2.97, although he had no jurisdiction to grant bail in the case. The bail so granted was later cancelled by the Sessions Judge, Mandi and further application for bail filed before the Hon’ble High Court was also dismissed. Thus, the said Shri Manoj Kumar Bansal had decided the application without jurisdiction in order to favour Shri R.S. Parmar, Advocate, and thereby committed grave judicial impropriety and thereby acted in a manner highly unbecoming of a Judicial Officer. 84.Prima-facie the delinquent had no jurisdiction to grant bail in rape case. The bail order on that ground was subsequently rejected by the learned Sessions Judge, Mandi. Hence, charge stands proved. 85.“Charge established.” Article-IX. That during the aforesaid period and while functioning in the aforesaid office, the said Shri Manoj Kumar Bansal imprisoned one Shri Manoj Kumar, under section 34 of Police Act, 1861 for 5 days. The defence counsel sought the benefit of set-off under section 428 Cr.P.C. as the accused had already remained in judicial 92. Plea of the delinquent that provisions of Section 428 Cr.P.C. were not applicable to Special Act, is not sustainable, because this basic provision was applicable to all the criminal proceedings. Accused Manoj Kumar was entitled for set off. But it has - 8 - custody for 14 days in this very case, but the request was turned down injudiciously and illegally. Thus, the said Shri Manoj Kumar Bansal has committed grave judicial impropriety and thereby acted in a manner highly unbecoming of a Judicial Officer. come in narration of Surender Kumar, PW-16 that sentence of Manoj Kumar was suspended on 8.8.1996. Resultantly, no legal prejudice was caused to Manoj Kumar convict, but the delinquent acted illegally by not granting set off under Section 428 Cr.P.C. Hence charge proved. 93. “Charge established”. The report of the Inquiry Officer was placed before the Full Court which was accepted rejecting the explanation given by respondent No.1 herein. The petitioner was awarded the penalty of compulsory retirement from service vide Annexure P-1 with the writ petition. This order was challenged by respondent No.1 in writ proceedings under Article 226 of the Constitution of India in writ petition CWP 943 of 2000 which was allowed by the learned Single Judge of this Court on 22nd November, 2004. The High Court is now in appeal. The primary objection of the High Court as appellant is that:- (i) That the learned Single Judge has exceeded his jurisdiction in re- assessing the entire evidence considered by the Inquiry Officer who alone was competent to decide on facts and in proceedings under Article 226 of the Constitution of India, this Court has no - 9 - jurisdiction to re-appreciate the evidence. (ii) That the conclusion arrived at by the learned Single Judge is a result of re-appreciation of entire evidence and substitution of his conclusions on the evidence on record acting as an appellate authority which is against law. (iii) On the quantum of punishment, it is the sole discretion of the disciplinary authority and this Court has no jurisdiction to enter into that aspect. It is in the background of these submissions made by learned counsel for the parties that this appeal is being considered. The propositions as urged for acceptance as being the settled law cannot be accepted in the broad and general terms as urged by learned counsel appearing for the appellants. The power of judicial review is by now clearly defined and cannot be subjected to the limitation under the rubric “re-appreciation of evidence” “acting as an appellate authority etc”. This Court cannot abdicate its Constitutional duties and powers under Article 226 of the Constitution of India and refuse to grant the rights and enlarge restriction as envisaged under Part III or the other provisions of the Constitution. Surely, if the findings are perverse or of such a nature which no reasonable person can arrive at, this Court would be within its jurisdiction - 10 - to reassess and reappreciate the evidence on record and then to grant appropriate relief in accordance with law. This Court cannot be a mute spectator to violation of constitutional rights and liberties guaranteed to citizens/ individuals. We have heard the learned counsel for the parties and have gone through the record. The judgments dealing with the ambit and power of judicial review of this Court may be noticed. Learned counsel for the appellant places reliance on judgment of the Supreme Court in B.C.Chaturvedi v. Union of India & others , (1995) 6 SCC 749 and submits that the High Court cannot act as an appellate authority. In particular, he emphasis that the powers of the High Court are confined for considering jurisdictional errors, perversity and not re- consideration of the entire evidence. In the case relied upon, the Court holds: “(12) 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 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 - 11 - 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 Evidence 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 the 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. - 12 - (13) The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued. (14) In Union of India v. S. L. Abbas (1993) 4 SCC 357, when the order of transfer was interfered with by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not in such circumstances, interfere with orders of transfer of a Government servant. In Administrator of Dadra and Nagar Haveli v. H. P. Vora (1993) Supp. I SCC 551, it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar - 13 - of a public servant. Recently, in State Bank of India v. Samarendra Kishore Endow (1994) 1 JT (SC) 217, a Bench of this Court of which two of us (B. P. Jeevan Reddy and B. L. Hansaria, JJ) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a Tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary / appellate authority.” He also submits that this very principle has been reiterated in Govt. of A.P. and others v. Mohd. Nasrullah Khan, (2006) 2 SCC 373, wherein it was held: “(11) By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to - 14 - adjudication on merit by reappreciating the evidence as an appellate authority.” He urges that judicial review is not against the decision, but it is the decision making process which is under scrutiny. In particular, he places reliance on the decision in Bank of India and others v. T. Jogram, (2007) 7 SCC 236, holding: “15. By now it is well-settled principle of law that judicial review is not against the decision. It is against the decision making process. In the instant case, there are no allegations of procedural irregularities/illegality and also there is no allegation of violation of principles of natural justice. Counsel for the respondent tried to sustain the allegation of malafide. He tried to assert that the respondent filed a case against the Chief Manager of Secunderabad Branch in 1996 and the enquiry initiated against the respondent is the fallout of malafide. We are unable to accept the bald allegations. The allegation of malafide was not substantiated. It is well settled law that the allegation of malafide cannot be based on surmises and conjectures. It should be based on factual matrix. Counsel also tried to assert the violation of principles of natural justice on the ground that the documents required by the respondent were not supplied to him. From the averment it is seen that the documents, which were - 15 - sought to be required by the respondent, were all those bills submitted by the respondent himself before the authority. In these circumstances, no prejudice whatsoever was caused to the respondent.” Dr. Balram Gupta, learned Senior Counsel, instructed by Shri C.N.Singh, Advocate, appearing for respondent No. 1, submits that the concept of judicial review has undergone fundamental change. He submits that it would be open to the Court to reconsider facts also, as the principles of judicial review as postulated by the Wednesbury case which was being consistently followed by the Supreme Court, has undergone a sea change. He relied upon the decision of the Supreme Court in State of U.P. v. Sheo Shanker Lal Srivastava and others , (2006) 3 SCC 276, holding: “25. It is interesting to note that the Wednesbury principles may not now be held to be applicable in view of the development in constitutional law in this behalf. See for example, Huang v. Secy. of State for the Home Department, (2005) 2 All ER 435, wherein referring to R. v. Secretary of state of the Home Department, Ex. P Daly, (2001) 3 All ER 433, it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merit judgment, - 16 - which is yet more than Ex p. Daly requires on a judicial review where the court has to decide a proportionality issue.” He also urges that in the present case, there is no appeal and this Court can go into question of fact. He relies upon the decision in Indian Airlines Ltd. v. Prabha D. Kanan, (2006) 11 SCC 67 holding: 44. But, in a case of this nature although there is no provision for appeal, but even in a judicial review, the court may require the employer to produce the records, on a perusal whereof the court may come to a finding as to whether the order passed by the Board of Directors was bona fide or not. 45. A judicial review of such an order would be maintainable. In a case of judicial review, where no appeal is provided for, the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not confine its jurisdiction only to the known tests laid down therefor, viz. , illegality, irrationality, procedural impropriety. It has to delve deeper into the matter, it would require a deeper scrutiny. 46. We may notice that keeping in view the situational changes and, particularly, outsourcing of the sovereign activities by the state, this Court has been expanding the scope of judicial review. It includes the - 17 - misdirection in law, posing a wrong question or irrelevant question and failure to consider relevant question. On certain grounds judicial review on facts is also maintainable. Doctrine of unreasonableness has now given way to doctrine of proportionality. 47. In S. N. Chandrashekar v. State of Karnataka, (2006) 3 SCC 208, this Court observed: "33. It is now well known that the concept of error of law includes the giving of reasons that are bad in law or (where there is a duty to give reason) inconsistent, unintelligible or substantially inadequate. (See de Smith's Judicial Review of Administrative Action, 5th Edn., p. 286.) 34. The Authority, therefore, posed unto itself a wrong question. What, therefore, was necessary to be considered by BDA was whether the ingredients contained in Section 14-A of the Act were fulfilled and whether the requirements of the proviso appended thereto are satisfied. If the same had not been satisfied, the requirements of the