CIVIL WRIT JURISDICTION CASE No.7872 OF 1997 ******* In the matter of an application under Article 226 of the Constitution of India. ******* ARUN PRABHAT SINHA, son of Late Mahendra Narain Sinha Ambasta, resident of village- Rampur Matihani, P.S. Matihani, District- Begusarai. …… Petitioner. Versus 1. THE HIGH COURT OF JUDICATURE AT PATNA, through the Registrar General, High Court, Patna. 2. The State of Bihar, through the Secretary, Personnel and Administrative Reforms Department, Main Secretariat, Patna. 3. The Under Secretary, Personnel and Administrative Reforms Department, Government of Bihar, Main Secretariat, Patna. 4. Judge-in-Charge, Saharsa. …… Respondents. ----------- For the Petitioner: Dr. S.N. Jha, Sr. Advocate with Mr. Chakrapani, Advocate. For Respondent Nos.1 &4: Mr. Piyus Lal, A.C. to Mr. Lalit Kishore, AAG-3. For respondent Nos.2 &3: Mr. Satyeshwar Prasad, A.C. to S.C. 19. ******* P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA ******* S.K. Katriar, J. This writ petition has been preferred by a former judicial officer of this State, and challenges the order passed by the State Government on 26.5.1997 (Annexure-1), whereby he has been dismissed from the Bihar Civil Service (Judicial Wing) with immediate effect. The petitioner also challenges the consequential 2 order dated 2.6.1997 (Annexure-2), issued by respondent no.1 (the Registrar General, High Court, Patna), as well as the order dated 9.6.1997 (Annexure-3), issued by respondent no.4, conveying the orders marked Annexures 1 and 2 to the petitioner. 2. A brief statement of facts essential for the disposal of this writ petition may be indicated. The petitioner had joined Bihar Judicial Service in April 1972. He was promoted to the substantive rank of Subordinate Judge in Bihar Judicial Service in due course, and was posted as Chief Judicial Magistrate at Supaul in February 1992. The present allegations are with respect to his functioning as Chief Judicial Magistrate at Supaul. In contemplation of a departmental proceeding, the petitioner was placed under suspension on 3.10.1994. The charge-sheet dated 5.1.1995 (Annexure-9), incorporating six charges, was served on him, and the learned District Judge, Saharsa, was appointed as the enquiry officer. The petitioner participated in the enquiry proceedings and cross- examined most of the witnesses produced by the establishment, and did not cross-examine a few witnesses. The learned District Judge submitted his enquiry report dated 29.9.1995 (Annexure-B), wherein he has found the charges to have been proved. The petitioner was served with the second show-cause notice dated 14.12.1995 (Annexure-C), accompanied with copy of the enquiry report. The Standing Committee of the Patna High Court at its meeting held on 3 23.3.1996, considered the materials on record including the cause shown by the petitioner and decided to recommend his case for dismissal from Bihar Judicial Service. The Full Court of the High Court on its administrative side had accepted the decision of the Standing Committee and forwarded the petitioner’s case to the State Government for dismissal from service by communication dated 10.5.1996. The State Government accepted the recommendation of the High Court and issued notification dated 26.5.1997 (Annexure- 1), dismissing the petitioner from Bihar Civil Service (Judicial Wing), with immediate effect, and impugned herein. This was followed by the consequential order dated 2.6.1997 (Annexure-2), issued by the Registrar General of the High Court to the District and Sessions Judge, Saharsa, which, in its turn, was followed by the order dated 9.6.1997 (Annexure-3), issued by respondent no.4, whereby the order of dismissal was served on the petitioner, and impugned herein. 3. While assailing the validity of the impugned order, learned counsel for the petitioner submits that, taking the findings recorded by the learned enquiry officer to be at the highest and gravest against the petitioner, he was at best guilty of careless and negligent discharge of duties in a situation, where he was over- burdened with work. In his submission, it is incumbent on the disciplinary authority to distinguish the cases of proven mis-conduct 4 on the one hand, and cases of careless and negligent discharge of duties, on the other. He relies on the judgment of the Supreme Court in Union of India Vs. J. Ahmad, reported in (1979)2 S.C.C. 286 (at page 293). He submits in the same vein that charge nos.1 to 5 had allegedly taken place between 7.5.1994 to 17.5.1994, which was a period of stress and overwork for him. He next submits that the finding with respect to charge no.1 may be treated to be perverse, inter alia, for the reason that it has been held to have been proved on the basis of a photo copy of the order. With respect to charge no.2, he submits that the order of the High Court was received along with a covering letter and, therefore, on the face of it there was no scope to doubt the credibility of the order in a situation where two other letters with orders from the High Court had together been received. He relies on the judgment of the Supreme Court in General Court- Martial and others vs. Col. Aniltej Singh Dhaliwal, reported in (1998)1 S.C.C. 756, paragraph 25. He lastly submits that excessive punishment has been meted out to the petitioner. 4. Mr. Piyus Lal has appeared for respondent nos.1 and 4 and has, in his elaborate submissions, supported the impugned action. He submits that this Court in exercise of its power of judicial review does not act as a court of appeal. This Court is not concerned with the decision-making, but the decision-making process. No procedural irregularity and violation of the principles of natural 5 justice, nor excessive punishment, has been brought to the notice of this Court. He relies on the judgment of the Supreme Court in B.C. Chaturvedi vs. Union of India and others, reported in (1995) 6 S.C.C. 749 (paragraphs 12 and 13). In his submission, the petitioner has not been able to make out a case of interference within the guidelines indicated in the judgment. He next submits that all the six charges have been held to have been proved, and the issues are concluded by findings of facts. He next submits that even if it is held, as has been canvassed on behalf of the petitioner, that charge no.1 is not proved, yet the combined effect of the remaining charges held to have been proved, makes out a case of gross misconduct, abdication of essential duties and functions, and the like. He relies on the judgment of the Supreme Court in State of Orissa and others vs. Bidyabhushan Mohapatra (A.I.R. 1963 S.C. 779, paragraph 9). He lastly submits that, in view of the proven charges including or excluding charge no.1, the punishment of dismissal is well-merited. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. The petitioner was posted as Chief Judicial Magistrate at Supaul in February 1992, and the present charges are with respect to his functioning at Supaul. Six charges were levelled against him. Charge no.1 is to the effect that the petitioner had illegally granted bail to 6 accused Upendra Yadav on 7.5.1994, in collusion with Pradeep Kumar, his Stenographer in Kishanpur P.S. Case No.16 of 1994, under section 302 of the India Penal Code, without a bail application on behalf of the accused, nor the lawyer for the accused was heard on that date. The second part of charge no.1 is that the High Court had in an unconnected bail application bearing Cr. Misc. No.6307 of 1994, had granted bail to the accused-petitioner of that case in Triveniganj P.S. Case No.16 of 1993, on 2.5.1994. The petitioner herein passed order dated 12.5.1994, in the said Kishanpur P.S., Case No.16 of 1994, and granted bail to accused Upendra Yadav by his order dated 12.5.1994, on the strength of the said order dated 2.5.1994, passed in the said Cr. Misc. No.6307 of 1994. The petitioner’s defence before the learned enquiry officer with respect to the first part of charge no.1 was that he had not passed the said order dated 7.5.1994. The learned enquiry officer has, therefore, concluded in paragraph 12 of the enquiry report as follows: “12. The non-mention of the bail petition alleged to have been filed by accused Upendra Yadav on 7.5.’94 in the above case in the Bail Registers maintained in the court of the Chief Judicial Magistrate, Supaul and the Assistant Public Prosecutor-in-charge, Supaul and over-writings made in the entries in the Court Diary and Court-fee Register of that date of the Court of the Chief Judicial Magistrate, Supaul, indicate that the bail order dated 7.5.’94 was passed by the Charged Officer in collusion with his stenographer Shri Pradeep Kumar purported to allow accused Upendra Yadav on bail in a case under section 302 of the Indian Penal Code surreptitiously and irregularly in order to help accused 7 Upendra Yadav illegally. I indict the Charged Officer on this part of the charge no.1 framed against him.” As to the second part of charge no.1, the learned enquiry officer has concluded in paragraph 17 of the enquiry report as follows: “17. From the above materials which have come on the record of this proceeding, it comes out that it was Shri Pradeep Kumar, the then stenographer of the Court of the Chief Judicial Magistrate, Supaul, who had forged the order passed by the Hon’ble High Court in Crl. Misc. No.6307/’94 enlarging the accused persons on bail in Tribeniganj P.S. Case No.16/’93, into an anticipatory bail dated 2.5.’94 and on the basis of that forged order again forged the order purported to have been passed in Kishanpur P.S. Case No.16/’94 on 12.5.’94 releasing accused Upendra Yadav on bail and granted him surrender slip (Ext-7) on the same date. In fact, from the above evidence and circumstances it comes out that the order passed on 13.5.’94 (Ext-6/1) in the Tribeniganj P.S. Case No.16/’93 was forged and fabricated into an order purported to have been passed on 12.5.’94 (Ext.6) in Kishanpur P.S. Case No.16/’94. In fact no independent order on 12.5.’94 was passed in Kishanpur P.S. Case No.16/’94 and the order dated 13.5.’94 (Ext-6/1) passed in Tribeniganj P.S. Case No.16/’94 was forged into that order dated 12.5.’94 passed in Kishanpur P.S. Case No.16/’94. Therefore, Shri Marcus Kindo, the then Subordinate Judge I-cum- Additional Chief Judicial Magistrate, Supaul (Departmental witness no.8) was not the author of the order purported to have been passed on 12.5.’94 (Ext- 6) in Kishanpur P.S. Case No.16/’94. Although the Charged Officer might have connived in getting the order purported to have been passed on 12.5.’94 (Ext- 6) in Kishanpur P.S. Case No.16/’94 forged, but his hands are not discernible clearly in this episode.” Before we proceed further, we would like to observe that, in so far as the first part of charge no.1 is concerned, the 8 petitioner’s defence before the learned enquiry officer was that he was not on duty on 7.5.1994, he had not dictated the order dated 7.5.1994, and the same had been prepared by Pradeep Kumar who had obtained his signature in the rush of work. We further find that Upendra Yadav, the accused, was not released on the basis of the order dated 7.5.1994, and also find that the order dated 7.5.1994 was a well-reasoned and a convincing order. We are, therefore, inclined to grant benefit of doubt to the petitioner in so far as the first part of charge no.1 is concerned. In so far as the second part of charge no.1 is concerned, the learned enquiry officer has himself found that the petitioner’s hand is not clearly discernible. The substance of the matter is that it is possible to grant benefit of doubt to the petitioner. 5.1) The substance of charge no.2 is that the petitioner had granted bail to accused Dinesh Mehta and Yogendra Mehta alias Yogia in Pipra P.S. Case No.31 of 1993, on the basis of a forged order purported to have been passed by the High Court on 23.2.1994, in Cr. Misc. No.2862 of 1994. The correct state of affairs is that the bail application of the two accused persons was registered in the High Court as Cr. Misc. No.13203 of 1993, and was rejected by the High Court by order dated 25.11.1993. The petitioner’s defence before the learned enquiry officer was that the order dated 23.2.1994, passed in Cr. Misc. No.2862 of 1994, was received in his office along with a covering letter duly signed by a functionary of the High 9 Court, along with two orders of unconnected cases similarly. In view of the communication from the High Court, there was nothing to suspect the order. The learned enquiry officer has found that the copy of the order appended to the covering letter was without any seal of the High Court and there was interpolation in the covering letter. The learned enquiry officer has, therefore, concluded in paragraph 23 of the enquiry report as follows: “23. On the basis of the above discussions, I hold that the Charged Officer illegally released accused Dinesh Mehta and Yogendra Mehta alias Yogia on bail on 17.5.’94 in collusion with his stenographer Shri Pradeep Kumar in Pipra P.S. Case No.31 of ’94 under section 302 of the Indian Penal Code on the basis of a forged and fabricated bail order dated 23.3.’94 purported to have been passed by the Hon’ble High Court in Criminal Misc. No.2862/’94. The charge no.2 is established against the Charged Officer.” 5.2) Charge no.3 is connected with charge no.2, and is to the effect that the petitioner did not take prompt and adequate steps to cancel the bail of accused Dinesh Mehta and Yogendra Mehta alias Yogia in the said Pipra P.S. Case No.31 of 1993. The learned enquiry officer has found that the petitioner had granted bail to these accused persons on 17.5.1994, and was released from jail on 18.5.1994. The learned Assistant Public Prosecutor had promptly filed application on 2.6.1994, in the petitioner’s court for cancellation of bail granted to the accused persons. Another application was also filed on 3.6.1994 by the informant for the same purpose. Instead of taking prompt and 10 appropriate steps, he passed an order on 3.6.1994, directing Pradeep Kumar, the stenographer, to verify, which was never complied with. The learned enquiry officer has found as follows in paragraph 29 of the enquiry report: “29. In view of the above discussions, I hold the Charged Officer guilty of charge no.3 as it has been established beyond doubt. The Charged Officer in spite of taking any prompt action on the petitions dated 2.6.’94 and 3.6.’94 filed on behalf of the informant in Pipra P.S. Case No.31/’93 for cancelling the bail bonds of accused Dinesh Mehta and Yogendra Mehta alias Yogia Mehta, passed an order on 3.6.’94 directing to make enquiry in the matter from the Hon’ble High Court through the District and Sessions Judge, Saharsa although the certified copy of the genuine order dated 4.3.’94 passed in Crl. Misc. no.2862/’94 by the Hon’ble High Court had been filed by the informant before him along with application dated 3.6.’94. He also did not get his that order complied by his office. This establishes the conduct of the Charged Officer lacking judicial discipline, diligence, sincerity and efficiency. I hold the Charged Officer guilty of charge no.3 framed against him.” It is relevant to state that the learned enquiry officer recorded his finding in view of the position that one of the applications for cancellation of bail was accompanied with a certified copy of the genuine order dated 23.2.1994, passed in Cr. Misc. No.2862 of 1994, which showed that the same was with respect to a different criminal case. 5.3) The substance of charge no.4 is that the petitioner granted bail to two accused persons, namely, Pankaj Kumar Verma and Mantu Jha under section 395 of the Indian Penal Code without a 11 bail application. The learned enquiry officer has concluded as follows in paragraph 34 of the enquiry report: “ In above view of the matter, I hold the Charged Officer guilty of illegally releasing accused Pankaj Kumar Verma and Mantu Jha on bail in collusion with his stenographer Shri Pradeep Kumar in Supaul P.S. Case No.77/’94 under section 395 of the Indian Penal Code on 7.5.’94 without hearing the defence lawyer or the Assistant Public Prosecutor, Supaul. Charge no.4 is proved against the Charged Officer.” 5.4) Charge no.5 is connected with charge no.4. Soon after bail was granted to Pankaj Kumar Verma and Mantu Jha in Supaul P.S. Case No.77 of 1994, the informant had filed an application on 20.5.1994 for cancellation of bail on the ground that the accused persons had obtained bail on the strength of orders of the High Court forged and fabricated by them. The learned enquiry officer has found that the petitioner hurriedly cancelled the bail without ensuring that the application for cancellation of bail was served on the accused persons and without hearing the accused persons. The learned enquiry officer has found as follows in paragraph 40 of the enquiry report: “40. In above view of the matter, I hold the Charged Officer guilty for charge no.5 framed against him that he cancelled the bails granted to accused Pankaj Kumar Verma and Mantu Jha in Supaul P.S. Case No.77/’94 under section 395 of the Indian Penal Code and ordered to issue warrants of arrest against them behind their back only after hearing the lawyer of the informant in that case by his order dated 1.6.’94 12 without service of show-cause notice in this regard on them.” 5.5) Charge no.6 is to the effect that the petitioner granted bail to Kameshwar Yadav in Marauna P.S. Case No.2 of 1992 in violation of the orders of the High Court. The charge is to the effect that the High Court had passed a conditional order dated 4.11.1992 in Cr. Misc. No.9133 of 1992, granting bail to him in Marauna P.S. Case No.2 of 1992, provided he was not an accused in any other case except Kishanpur P.S. Case No.148 of 1991. The learned enquiry officer has found that the petitioner granted bail to Kameshwar Yadav without verifying the position whether or not he was an accused in any case or cases other than Kishanpur P.S. Case No.148 of 1991. He has further found that he was actually accused in three other criminal cases, other than Kishanpur P.S. Case No.148 of 1991. The learned enquiry officer has observed in paragraph no.44 of the enquiry report as follows: “44. Therefore, the Charge no.6 has been admitted by the Charged Officer before me in toto. Hence, I hold him guilty of this charge.” 5.6) The learned enquiry officer has summed up the findings as follows in paragraph 45 of the enquiry report: “45. I further hold that the aforesaid acts on the part of the Charged Officer go to show his patent involvement in them, carelessness, negligence, dereliction of duty and misuse of judicial discretion, lack of integrity and a conduct most unbecoming of a Judicial Officer.” 13 6. The enquiry report led to the petitioner’s dismissal from service in the manner indicated hereinabove. It appears to us that the High Court on the administrative side entirely agreed with the findings of the learned enquiry officer on all the six charges. It appears to us that two opposite views are possible in so far as charge no.1 is concerned. Even if we were to grant benefit of doubt to the petitioner on this count, we agree with the findings of the learned enquiry officer in so far as the remaining five charges are concerned. In spite of a liberal approach, the combined effect of the remaining charges does not help the petitioner. The findings with respect to charge nos.2 to 6 present the petitioner in dim light and create an impression of dishonest and irresponsible conduct, being hands in gloves with his stenographer, the accused persons, and possibly with the informant also. Speaking euphemistically, all this is most unbecoming of a judicial officer. We must candidly state that we wanted to verify the involvement of Pradeep Kumar, the stenographer, with respect to the six charges and the action taken against him. There is complete absence of materials on record on this aspect of the matter and, therefore, we are not in a position to apportion the responsibility between the two persons. 7. In this background, we are unable to agree with the contention advanced on behalf of learned counsel for the petitioner 14 that it was at best a case of careless and negligent discharge of duties. We are left with the clear impression that it was far worse, and the petitioner is not at all fit to continue in Bihar Judicial Service. We have strained ourselves hard to find any mitigating circumstance in favour of the petitioner. The stenographer’s involvement could have thrown some light but we are unable to find any material at all. 8. Learned counsel for respondent nos.1 and 4 is right in his submission that it is not a court of appeal, and this Court in exercise of powers of judicial review with respect to disciplinary proceeding is not concerned with the decision itself, but has to ensure that the decision-making process was meticulously observed. No grievance has been raised on behalf of the petitioner. On a perusal of the materials on record, we are convinced that well-crystallized charge-sheet was served on the petitioner, the petitioner fully participated in the enquiry proceeding, did examine most of the witnesses of the establishment, the prescribed procedure was followed, and the principles of natural justice were fully observed. The petitioner was served with a second show-cause notice accompanied with a copy of the enquiry report to which he had shown cause. On a consideration of the entire materials, the Standing Committee and the Full Court of the High Court accepted the enquiry report and recommended the petitioner’s dismissal from service. The same has been accepted by the State Government. Indeed the 15 petitioner has not raised any grievance with respect to the decision- making process. Learned counsel for respondent nos.1 and 4 has rightly relied on the judgment of the Supreme Court in B.C. Chaturvedi Vs. Union of India and others (supra), paragraphs 12 and 13 of which are reproduced hereinbelow which defined the para- meters of exercise of powers of judicial review in so far as scrutiny of departmental proceeding is concerned: “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 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 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 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