Allahabad High Court

Naresh Singh S/O Kesari Singh (In ... vs State Of U.P. Thru Prin. Secy. Law & ... on 3 January, 2013

Bench:
Rajiv Sharma
,
Devendra Kumar Arora

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

Writ Petition No.834 (SB) of 2009

Naresh Singh ... Petitioner

Versus

State of U.P. and others ... Opposite parties

Hon'ble Rajiv Sharma,J.

Hon'ble Devendra Kumar Arora,J.

Heard Sri S.K.Kalia, Senior Advocate assisted by Sri Sameer Kalia appearing for the petitioner and Sri Alok Sinha, learned Additional Chief Standing Counsel.

Removal/dismissal/termination or compulsory retirement from service is treated as a calamity by a person against whom such an order is passed and as such, it is always questioned before a Court of law. In the present case, the authority, which was dispensing justice to others, is, today before us questioning the validity and correctness of the resolution passed by the Full Court and the order of removal issued by the State Government apart from other orders.

At the outset, it is relevant to point out that initially the petitioner in the instant writ petition claimed for quashing the resolution of the Full Court dated 16.5.2009, whereby the Full Court resolved to remove the petitioner from service. The petitioner has also inter alia prayed for quashing of orders dated 25.5.2009 and 26.5.2009 passed by the District Judge, Baduan divesting the petitioner from judicial functioning and withdrawing cases from his Court, pursuant to the High Court's confidential D.O. No. 258/AR(S)/2009, dated 25.5.2009. During pendency of this writ petition, the State Government issued an office memorandum dated 10.7.2009 removing the petitioner from service and as such, the petitioner amended the writ petition and sought quashing of the aforesaid order too.

Bereft of the unnecessary details, in short, facts of the case are that the petitioner, who was a member of Higher Judicial Services, was posted as Additional District & Sessions Judge, Muizaffar Nagar, where he had assumed charge on 24.12.2004.

At the relevant time, a bail application in case crime no. 146 of 2006, under
sections 498-A
&
304-B
IPC and
Section 3
/
Dowry Prohibition Act, Police Station Nai Mandi, district Muazaffarnagar, came up for hearing before him on 15.5.2006 for the first time, but it was adjourned for 18.5.2006 on account of the request made by the Counsel for the complainant. It is relevant to mention that on 17.5.2006, an order was passed by the District Judge, Muzaffarnagar that since he has to leave for Allahabad on 17.5.2006 and could not be available on 18.5.2006, as such urgent and routine judicial work shall stand transferred to the senior-most Additional District & Sessions Judge. According to the petitioner, since he was the senior-most Additional District & Sessions Judge in the Judgeship, all judicial work including the aforesaid bail application was transferred to petitioner's Court on 18.5.2006. On the said date, after hearing the parties, the petitioner granted bail in the aforesaid case crime No.146/2006.

On 23.5.2006, a complaint was made by one Jai Pal Singh Mittal to the Hon'ble the Chief Justice with a copy endorsed to the Administrative Judge of the Muzaffarnagar Judgeship alleging therein that the petitioner has granted bail to the main accused Arvind (husband of the deceased) with an ulterior motive and the complainant has heard rumours that a transaction of few lacs of rupees has also taken place. On this complaint, a vigilance enquiry was conducted and after culmination of enquiry, vide order dated 3.3.2008, the High Court resolved to conduct a detailed enquiry (Departmental Inquiry No.04 of 2008) against the petitioner and Hon'ble Mr Justice Rakesh Tiwari was appointed as Enquiry Judge. On 23.4.2008, the petitioner was served with a charge sheet in which following three charges were levelled against him:-

"(I) That you, Naresh Singh, while posted as Additional District and Sessions Judge, Muazaffarnagar and working as Incharge District Judge on 18.5.2006 had failed to maintain absolute integrity and devotion to your duty by granting bail to the main accused, Shri Arvind, in Bail Application No. 1118/06 on false grounds of parity and against all cannons of criminal law, which is a serious misconduct within the meaning of Rule 3 of U.P. Government Servants Conduct Rules, 1956.

(II) You are also charged of continuing to work in the aforesaid capacity of Additional District and Sessions Judge instead of handing over charge after your transfer vide Notification No. 88/DRS/06 dated 29.4.2006 which not only amounts to disobedience of direct lawful orders of the High Court, Allahabad, but also an act of undermining the authority of the High Court, a misconduct within the meaning of Rule 3 of the U.P. Government Servants Conduct Rules, 1956.

(III) That you have committed the above said acts mentioned in Charges No. 1 & 2 which fall under corrupt practice and disobedience of lawful order of superior authority which constitutes misconduct within the meaning of Rule 3 of U.P. Government Servants Conduct Rules, 1956."

To the aforesaid charge-sheet, the petitioner submitted his reply on 7.5.2008 denying all the charges levelled against him and submitted that he was competent to grant bail in the aforesaid matter and granted bail to the accused Arvind after considering all the facts and circumstances as also the legal aspects pertaining to the case in question. The charge of grant of bail does not attribute any ulterior motive or extraneous consideration to the petitioner and, as such, he could not be punished for discharging his duties to the best of his ability.

As regard the second charge that he continued to work in the capacity of Additional District & Sessions Judge instead of handing over the charge after his transfer vide notification dated 29.4.2006, petitioner clarified in his reply that vide notification dated 29.4.2006, he was transferred from the post of Additional District & Sessions Judge, Muazaffarnagar to the post of Officer-on Special Duty (Inquiries), Hon'ble High Court at Allahabad but petitioner was not relieved of his charge and it was only on 20.5.2006, the petitioner was relieved by the District Judge after consultation with the Registrar General and as such no fault can be attributed to him.

As regard the third charge, petitioner submitted his reply that he has not flouted any orders passed by any of his superior authorities but had only acted as per directions and wishes of his superior authorities and had also acted in exercise of judicial powers vested in him under law and, as such, no misconduct at all can be attributed to him.

After submission of reply to the charge-sheet, the Inquiry Judge fixed 17.5.2008 for enquiry and evidence. On 17.5.2008, (P.W.1)Surendra Sharma, who was the Counsel for the complainant and had opposed the bail, was examined and he was also cross-examined by the petitioner. On the said date, the complainant was also to be examined but the Presenting Officer was informed that due to some mishap, he had shown his inability to participate in the enquiry and as such, the enquiry was slated for 30.5.2008 for further evidence. On 30.5.2008, the enquiry proceeded and the Presenting Officer produced an affidavit dated 27.5.2008 of the complainant before the Inquiry Judge, a copy of which was also served upon the petitioner which reveals that the complainant had deposed in favour of the petitioner stating therein that he has no grievance against the petitioner. At the relevant time, he was not in a good state of mind and as such he made the complaint based on rumours. On 30.5.2008, petitioner was also given an opportunity to produce any witness, if he so desires. However, the petitioner informed that he did not want to produce any witness and, as such, his evidence was closed. On the same date, arguments were heard and the enquiry stood completed with the direction to both the parties to furnish written arguments within the period prescribed. Consequently, the petitioner submitted his written arguments on 6.6.2008.

As averred above, a sitting Judge of the High Court conducted the enquiry and gave his report on 7.8.2008, wherein he found all the three charges levelled against the petitioner to be proved. A copy of the enquiry report was made available to the petitioner asking him to submit reply to the said report to which he submitted reply on 29.9.2008.

At this juncture, it is relevant to point out that on 22.8.2008, the complainant moved an application to the Hon'ble Chief Justice along with an affidavit stating therein that he does not want to press his complaint letter dated 23.5.2006.

On 16.5.2009, the meeting of the Full Court took place and the matter of the petitioner was considered at agenda No.10. It may be noted that before the Full Court, enquiry report and affidavit dated 22.8.2008 was also placed. The Full Court after considering the enquiry report dated 7.8.2008 submitted by the learned Inquiry Judge, comments dated 29.9.2008 submitted by the officer, including the letter and affidavit both dated 22.8.2008 of Sri Jai Pal Singh Mittal resolved that enquiry report dated 7.8.2008 be accepted and officer be removed from service. It was further resolved that the Government be requested to issue necessary orders in this regard.

Hence this writ petition.

Sri S. K. Kalia, Senior Advocate has vehemently argued that the enquiry report is based on surmises and conjectures. The Inquiry Judge himself found that charge of corrupt practice has not found proved against the petitioner, even then he inferred ulterior motive against him. In the inquiry report, though there was no charge of illegal gratification or corrupt practice nor it has been found proved as mentioned in the last pages of Inquiry Report, but the extraneous considerations has been found only on the basis of fact that the petitioner granted bail which was legally not permissible. There is nothing on record so as to come to the conclusion that the petitioner exercised his powers by granting bail upon extraneous considerations or some illegal gratification took place. Though the charge no. 3 was not proved against the petitioner separately but the Inquiry Judge observed that since charges no. 1 and 2 have been proved, the third charge automatically stands proved. The findings arrived at by the learned Inquiry Judge are not based on correct appreciation of material on record and same are absolutely perverse and not sustainable in the eyes of law. As such, the order dated 10th July, 2009, passed by the State Government, pursuant to the resolution of High Court, is non est and also stands vitiated. Moreover, the State Government has issued the impugned office memorandum in a mechanical manner without application of mind to the facts and circumstances of the case.

On the strength of the decisions rendered in
Ramesh Chandra Singh vs. High
Court of Allahabad (2007) SCC 247, Vijendra Pal Singh vs. State of U.P. (
2001) 3 UPLBEC 2659, P.C. Joshi vs. State of U.P.
(2001) 6 SCC 491, Vijendra Pal Singh vs. High Court of Judicature at Allahabad and others,(2009) 2 AWC 1243, Yoginath D Badge vs. Sate of Maharashtra(1999)7SCC 739, Kuldeep Singh vs. Commissioner of Police (1999) 2 SCC 10 and Roop Singh Negi vs. P.N.B.(2009) 2 SCC 570, Counsel for the petitioner, asserted that wrong exercise of jurisdiction by a judicial/quasi-judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. Making adverse comments against subordinate judicial officers and subjecting them to severe disciplinary proceedings would ultimately harm the judicial system at gross level. There can be no doubt that the order passed on bail application was passed in judicial proceedings by the petitioner. The order granting bail by the petitioner was passed after taking one view in the matter. The possibility that a different conclusion is possible, is no ground to indict the judicial officer for having taken that view on extraneous consideration. Therefore, the finding of the Inquiry Judge that the bail order was granted to the accused is based on extraneous consideration, is wholly baseless and has no legs to stand.

Elaborating his submissions, learned Counsel for the petitioner has raised several contentions including that there was no evidence in support of the charges that there was transaction of amount while granting bail to the accused in case crime no. 146/2006. It is contended that the Inquiry Judge in the report has referred to some F.I.R. said to have been lodged by Sri Jai Pal Singh Mittal, the complainant and his son with the G.R.P. Police Station at Luxar, regarding an alleged incident of being beaten up while they were on way to Allahabad to participate in the enquiry. It is said that the Presenting Officer has received a telephonic message as well as a FAX letter dated 17.5.2008 from Sri Navneet Mittal, son of Sri Jai Pal Singh Mittal (complainant). As a matter of fact, there was no FIR as referred in the Inquiry Report. The petitioner had obtained copies of FIRs lodged at G.R.P. Police, Luxar from 15.5.2008 to 19.6.2008. The said period covers the dates 16.5.2008 and 17.5.2008 on which F.I.R. said to have been lodged by the complainant and four case crime Nos. 17, 18, 19 and 20 all of 2008 were lodged. In none of the FIRs, there is mention of the fact that Sri Jai Pal Singh Mittal or his son Sri Navneet Singh was beaten up. In fact, these FIRs are related to offences like pick pocketing, robbery and assault on police. Similarly, the Inquiry Judge has relied upon the statement of Surendra Kumar Sharma recorded during the Preliminary Inquiry, which is highly illegal. As far as Sri Raj Bahadur Singh, DGC and Sri Naseer Ali, Advocate, are concerned, they were witnesses for the establishment cited to prove the charges against the petitioner but they were never examined.

It is vehemently contended that the impugned resolution and the order of the State Government are based on non-existing facts. Even in the impugned order dated 10.7.2009 issued by the State Government, the State Government has taken into consideration a non-existing FIR.

Lastly, it has been argued that no where in the Inquiry Report, it has been said that the petitioner has misused his powers available under
Sections 77
and
of the IPC but, surprisingly, in the impugned order issued by the State Government, it has been recorded that the petitioner has granted bail by completely abusing the powers under
Sections 77
and
of the IPC. Passing of a wrong judicial order does not amount to misconduct within the meaning of U.P. Government Service Conduct Rules, 1956.

In oppugation, Sri Alok Sinha, learned Additional Chief Standing Counsel, appearing on behalf of the State submitted that the petitioner, who was a judicial officer, is not entitled for any indulgence of this Hon'ble Court in its extraordinary discretionary writ jurisdiction under
Article 226
of the Constitution inasmuch as he has not come with clean heart and mind. The petitioner, in the writ petition made a false statement that the petitioner has an unblemished service record as a Member of Higher Judicial Service and has no adverse entry to his credit. It was further added that number of complaints were received against the working and conduct of the petitioner as Judicial Officer. Earlier, three vigilance Inquiries were registered against the petitioner of which two pertain to district Farukhabad and the last one pertains to district Budaun. The vigilance inquiries pertaining to Farukhabad were dropped but in respect of third, another departmental enquiry was instituted against the petitioner, which is pending. The correct position is that that the petitioner was given an adverse remark for the year 1999-2000 by the then District Judge, Farrukhabad and also by this Court on administrative side, which was communicated to the petitioner vide court's letter dated 15.11.2000 through District Judge, Moradabad. He was given another adverse remark in the year 2005-2006 as referred in para 17 of the counter affidavit. To substantiate his aforesaid contention, State Counsel has relied upon the decisions rendered in
K. D. Sharma vs. Steel Authority of India Ltd. and others
(
2008) 12 SCC 481 and R. C. Jain vs. High
Court of Patna as reported in (1996) 10 SCC 5.

Elaborating his submission, it has been argued by the State Counsel that in the departmental enquiry, it is established that the petitioner granted bail by artificially extending the benefit of parity to the accused without properly considering the record, that the wife of the complainant was beaten up in Court premises to prevent her from doing pairvi which was against all cannons of criminal law. Moreover, the petitioner further misconducted himself inasmuch as that when he was transferred vide notification dated 29.4.2006 and was required to handover charge of the office immediately in the manner prescribed in C.L.No. 56/IV-E-82 Admin.(A) dated 31.8.1984 but he defied the said order and handed over the charge only after granting bail to the accused-Arvind. It has also been pointed out that the petitioner never applied to the Court for extension of time or for relieving him, therefore, there was no occasion for the Registrar General to pass any order in this context. The aforesaid facts clearly show the complicity of the petitioner in illegally granting bail and thus it can easily be inferred that the bail was granted for extraneous consideration.

As regard charge no.3 against the petitioner, the said charge was that his acts mentioned in charges 1 and 2 fell under corrupt practice and disobedience of lawful order, which constitute misconduct within the meaning of Rule 3 of the U.P. Government Servants Conduct Rules, 1956. It is stated that even though the charge of corrupt practice was not established against the petitioner nevertheless the charge of the disobedience of lawful order of the High Court notification dated 29.4.2006 was established against the petitioner. It has been pointed out that by the said order dated 29.4.2006, the petitioner, who was posted as Additional District and Sessions Judge, Muzaffarnagar, was transferred to the post of the OSD (Inquiries), High Court, Allahabad and he was required to hand over the charge of the office immediately. The Officer, however, instead of carrying out the order of transfer continued and stayed at Muzaffarnagar and while he was under transfer, he passed the bail order on 18.5.2006.

Relying upon (2000) 1 SCC 416, High Court of Judicature at
Bombay vs. Shashi Kant S. Patil and another
and (
2006) 1 UPLBEC 985, State of U.P. vs. Sheo Shankar Lal Srivastava
, it has been contended that the petitioner has failed to make out any ground for seeking the reliefs sought for in the writ petition. As a matter of fact, there is no illegality or procedural irregularity in conducting the departmental inquiry against the petitioner and the punishment order has been passed by the competent authority. In other words, the Full Court after due deliberation and with full application of mind had resolved to remove the petitioner from service and it is not imperative for the Full Court to give detailed reasons in its resolution. However, it was added that the petitioner has been given full and reasonable opportunity of defending himself in the enquiry proceedings and, therefore, the enquiry report and consequential resolution of the Full Court are perfectly legal and valid.

On conclusion of hearing on 02.04.2012 in order to verify as to whether any correspondence took place between the Registrar General and the District Judge, with regard to extension of time for joining of the petitioner or whether there is anything in writing in the note sheets with regard to the telephonic conversation between the Registrar General and the District Judge in respect to relieving of the petitioner from Muzaffargagar Judgeship, Shri Alok Sinha, learned Additional Chief Standing Counsel was directed to open the record, which was kept in sealed envelope, in the presence of the Registrar of the Court and after ascertaining the facts Shri Sinha was required to inform the said facts in writing to the Court and the record was to be kept again by the Registrar in sealed cover. Shri Alok Sinha, learned Additional Chief Standing Counsel after examining the record has submitted his written report in compliance of the aforesaid order.

A perusal of the report reveals that the record does not contain any noting or document regarding the telephonic conversation between the Registrar General and the District Judge Muzaffarnagar in respect of relieving of the petitioner from Muzaffarnagar Judgeship. However, there is a report dated 29.05.2008 of the Registry in response to the query of the Officer-on-Special Duty (Inquiry) to the effect that as per the record of the Office, the petitioner has handed over the charge at Muzaffarnagar on 20.05.2006 and has not obtained any prior permission of this Court in compliance of transfer vide Notification dated 29.04.2006. The report further says that the order-sheet dated 30.05.2008 of the enquiry proceedings shows that information regarding handing over the charge by Shri Naresh Singh (petitioner), the then Additional District and Sessions Judge, Muzaffarnagar to the Officer-on-Special Duty, High Court was admitted and the same was marked as Ex.1 and Ex.2 respectively. The charged officer, on being given an opportunity to produce any witness, did not desire to produce any witness in support of his case and he also closed his evidence.

The report further says that the charge-sheet along with copies of the cited documentary evidence was served upon the petitioner through District Judge, Badaun on 23.04.2008 and the same contained the endorsement of the petitioner dated 23.04.2008.

With respect to query of the Court in respect to the alleged incident of Marpeet, which took place on 16.08.2008 when the complainant enroute to Allahabad in Train, the report indicates that as per order-sheet dated 17.05.2008, the Hon'ble Inquiry Judge recorded in the proceedings that a fax letter on behalf of complainant (Jai Pal Singh Mittal) was received in the Registry on 17.05.2008, the Presenting Officer, Smt. Pratibha Khanna had also informed on that date itself about telephonic communication to her to the effect that complainant and his family members had decided not to give any evidence in the matter. However, the Hon'ble Inquiry Judge ordered that to secure the ends of justice, the complainant should be informed again through District Judge that 30.05.2008 has been fixed for evidence of the complainant. In the alternative, they may also inform by 24.05.2008 in writing about their availability on 30.05.2008 at Haridwar for evidence or they would like to come for enquiry at Allahabad under Police Escort. The report also indicates that the order-sheet dated 26.05.2008 shows that on service of the notice on the complainant on 22.05.2008, an endorsement was made by the complainant on the notice that he neither wanted to appear in the witness box nor he wants to press his complaint dated 23.05.2006. The complainant had also sent a Fax Message to the Officer-on-Special Duty (Inquiry) on 23.05.2008 reiterating the said facts. In this background the Hon'ble Inquiry Judge ordered that no useful purpose would be served, if attendance of Shri Jai Pal Singh Mittal (complainant) is ensured through coercive process.

On the plea that the Hon'ble Inquiry Judge had also taken into consideration extraneous facts regarding Marpeet with the mother of the deceased on 22.02.2006, at 3.15 PM, the report indicates that this Court while deciding the Criminal Misc. Bail Cancellation Application No.10349 of 2006, Jai Pal Singh Mittal vs. State of U.P. and others vide judgment and order dated 01.12.2006, which was cited as a documentary evidence in the charge-sheet and was served upon the charged officer along with charge-sheet, had taken the judicial notice of all the relevant facts including the incident of 'Marpeet' with the mother of the deceased in the Court premises and a life threat to her by the brother of the accused Arvind etc.

Submission of Shri S.K. Kalia, Senior Advocate for the petitioner in sum and substance is that there was no material before the Enquiry Officer relating to charges and incident of alleged Marpeet was not an issue before the Inquiry Officer, there is no allegation of corrupt practice/extraneous consideration, rather, the charge is that petitioner on the ground of parity has granted bail. The explanation of the petitioner with respect to over stay after transfer, was not appreciated at any level and only one witness, namely Shri Surendra Kumar Sharma, Advocate was produced as witness on 17.05.2007, who had deposed in favour of the petitioner.

The examination of the inquiry report reveals that Shri Surendra Kumar Sharma, Advocate, Counsel for the complainant appeared as PW-1 on 17.05.2008 and on examination, he stated on the basis of his personal opinion that since there were similar and general allegations against all the accused persons and, as such, it was a case of parity and had he been the Judge hearing the bail application, he would have also granted the said bail as the petitioner had.

The record and the report submitted by Shri Alok Sinha, learned Additional Chief Standing Counsel, pursuant to the directions of this Court dated 02.04.2012, reveal that on 17.05.2008 the Presenting Officer was telephonically informed by Shri Navneet Mittal son of Shri Jai Pal Singh Mittal (complainant) that while he and his father were on way to Allahabad to give their statements, they were mercilessly beaten by the brother of the accused Arvind resulting in serious injuries and threat to their lives and the fax was also sent to the Presenting Officer on the same day and prayed for providing security or making alternative arrangement for recording their statements/ evidences at Hardwar. The Hon'ble Inquiry Judge taking into consideration the fax letter dated 17.05.2008 directed Shri Jai Pal Singh Mittal (complainant) to appear for his evidence on 30.05.2008. Alternatively, he was asked about his availability on 30.05.2008 at Hardwar, if he so desire, for evidence or he would like to come for enquiry at Allahabad under Police Escort.

It appears that on receiving the order of Hon'ble Inquiry Judge, the complainant made an endorsement that he neither wants to appear in witness box nor he wants to press the complaint dated 23.05.2006. The complainant also sent a fax-message to the Officer-on-Special Duty (Inquiry) on 23.05.2008 reiterating the above facts and the Hon'ble Inquiry Judge on 26.05.2008 ordered that "....no useful purpose would be served if attendance of Shri Mittal is ensured through coercive process." It appears that no other witnesses were produced and Hon'ble Inquiry Judge on the basis of record, without allegations being proved in totality against the petitioner, proceeded further.

The record further shows that the Hon'ble Inquiry Judge has also taken into consideration the order passed in Criminal Misc. Bail Cancellation Application No.10349 of 2006, Jai Pal Singh Mittal vs. State of U.P. & others dated 01.12.2006 as the same was cited as documentary evidence in the charge-sheet, in which the concerned Court came to conclusion that Incharge Sessions Judge has wrongly granted the benefit of parity to the accused Arvind by adopting a reason which is not only absurd but perverse too. It was also observed by the Hon'ble Inquiry Judge that the accused Arvind remained in custody during trial and was convicted and sentenced to life imprisonment by the Trial Court and he was enlarged on bail in Criminal Appeal No.6585 of 2007, Arvind vs. State of U.P.

It may be mentioned that the Hon'ble Inquiry Judge examined the charges no.1 and 3 together and after examining the judgments on the issue came to the conclusion that the facts and circumstances establish that the Charged Officer should not have exercised his discretion in favour of the accused simply on the ground of an artificially created and extended parity with that of his parents without actually referring to orders passed by the High Court and examining the facts, if any, making out a case of parity. It has also been observed that plain reading of the bail order reveals foul play; and no Judge shall normally pass such order exercising discretion in favour of the accused unless there is some hidden motive/intention behind it. It is also observed that it is not possible for the department to pierce the veil and reasons. In all probabilities, it is the money factor which mostly works as an incentive or driving force behind all these actions of a Judicial Officer and reached to the conclusion that bail was granted for extraneous considerations by the Charged Officer to the accused Arvind, who was not entitled to get parity with those of his parents and, thus, he appears to have failed to maintain absolute integrity and devotion towards his duty and accordingly charge was found proved.

While examining the charge no.2 with regard to staying as Additional District and Sessions Judge, Muzaffarnagar, instead of handing over the charge on transfer vide Notification No.88/DR (S)/06 dated 29.04.2006, Hon'ble Inquiry Judge after examining the reply of the petitioner that since Shri Shashank Shekhar had not handed over the charge, the petitioner could not take over charge as Officer-on-Special Duty (Inquiry), as well as report submitted by the Presenting Officer from the office of JR (Services), copy of which was given to the Charged Officer, shows that Shri Shashank Shekhar, Officer-on-Special Duty (Inquiry), had handed over the charge on 03.05.2006, whereas Shri Naresh Singh took over charge on the said post on 23.05.2006 in compliance of the notification dated 29.04.2006, which was to take effect immediately. Therefore, it has been observed that there is delay of about 20 days in compliance of the order on the part of the Charged Officer. It has also been observed by the Hon'ble Inquiry Judge that the word "immediately" has been clearly explained in the circular letters issued by the Court vide Circular No.74/1V-e/82 Admin. (A) dated 20th November, 1982, which provides that:-

"On receipt of orders of transfer, the officer concerned should handover the charge within a week of receipt of such orders and proceed to the new station of his posting. In case he has some genuine reasons for not handing over charge within a week, he should obtain prior permission of the Court to hand over the charge on some later date but his request will be accepted only if the District Judge recommends it. In case an officer delays in handing over the charge without the prior permission of the Court, the District Judge should bring this fact to the notice of the court."

The Hon'ble Inquiry Judge came to conclusion that the Charged Officer has admittedly not moved any application for permission to hand over the charge at a subsequent date showing reasons for not handing over the charge within a week on receipt of the order. Even, the then District Judge has not brought this fact to the notice of the Court and there was no communication from the Court directing the Charged Officer not to hand over the charge until Shri Shashank Shekhar did not hand over the charge. The Hon'ble Inquiry Judge also relied on the Circular Letter No.56/1V-e/82 Admin. Dated 31st August, 1984, which provides that:-

"The Officers on transfer should take over at the station of their posting in accordance with the orders of their transfer issued by the Court from time to time and, in the event of their failure to do so, disciplinary action would follow against them."

The Hon'ble Inquiry Judge after examining the various circulars of the High Court and the submissions of the petitioner opined that since there are specific guidelines contained in circulars letters of the High Court, to be followed strictly by the Judicial Officers under transfer and the office of the Officer-on-Special Duty (Enquiry) had fallen vacant on 03.05.2006, the Charged Officer had joined on 23.05.2006 without any prior permission of the Court and not showing any reason for the delay of about 20 days in its compliance. Therefore, the charge no.2 was found proved against the petitioner.

With respect to charge no.3, it has been observed that the Charged Officer has passed an illegal order on 18.05.2006 granting bail to the husband in dowry death case pretending it to be a case of parity with his parents while he was transferred, but continued to work at Muzaffarnagar without any permission of the Court and disposed of the said bail application as Incharge Sessions Judge only five days before handing over the charge. Although the department could not establish any corrupt practice adopted by the officer yet it is proved that he passed an illegal order while disobeying the compliance of the notification dated 29.04.2006, as such, he has misconducted himself within the meaning of Rule 3 of U.P. Government Servants Conduct Rules, 1956 and held charge no.3 proved against the petitioner.

In the backdrop of the aforesaid facts, we have examined the charge no.1, which has been levelled against the petitioner on the basis of judicial order passed by him while considering the bail application of the accused in the case of dowry death of his wife.

For initiating disciplinary proceedings against the officer performing judicial or quasi-judicial functions, guidelines have been laid by the Apex Court in the case of
Union of India and others vs A. N. Saxena
, [AIR 1992 SC 1233], it has been laid down that:

"It is true that when an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his action and only if the circumstance so warrant. The initiation of such proceedings is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence. Hence the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. But it is not as if such action cannot be taken at all. Where the actions of such an officer indicate culpability, namely, a desire to oblige himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken."

Again in the case of
Zunjarrao Bhikaji Nagarkar v. Union of India and others
, AIR 1999 SC 2881, the Apex Court laid down that:

"To maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law, e.g. in the nature of some extraneous consideration influencing the quasi-judicial order. 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 where-under 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. When we talk of negligence in a quasi-judicial adjudication, it is not negligence perceived as carelessness inadvertence, or omission but as culpable negligence. A wrong interpretation of law cannot be a ground for misconduct."

In another case, namely,
Ramesh Chander Singh vs. High
Court of Allahabad and another; 2007 (4) SCC 247 the Apex Court observed in explicit words that for initiation of disciplinary proceedings against a Judicial Officer, there should be strong grounds to suspect the officer's bona-fides and the order itself should be actuated by malice, bias or illegality and High Court must take extra care and caution, and the practice of initiation of a disciplinary proceedings against the officers of subordinate judiciary merely because judgments/ orders passed by them are wrong, has been disapproved by the Hon'ble Supreme Court on several occasions. It would be useful to reproduce relevant paragraphs herein below:-

"12. This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/ orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care and caution.

13.
In
Iswar Chandra Jain v. High
Court of Punjab and Haryana, AIR 1988 SC 1395, this Court observed that while exercising control over subordinate judiciary under
Art. 235
of the Constitution, the High Court is under a Constitutional obligation to guide and protect subordinate judicial officers. An honest and strict judicial officer is likely to have adversaries. If complaints are entertained in trifling matters and if the High Court encourages anonymous complaints, no judicial officer would feel secure and it would be difficult for him to discharge his duties in an honest and independent manner. It is imperative that the High Court should take steps to protect honest judicial officers by ignoring ill-conceived or motivated complaints made by unscrupulous lawyers and litigants.

14.
In
K.P. Tiwari v. State of Madhya Pradesh
, AIR 1994 SC 1031, where the High Court reversed the order passed by the lower court making remarks about interestedness and motive of the lower court in passing the unmerited order, this Court observed that one of the functions of the higher court is either to modify or set aside erroneous orders passed by the lower courts. Our legal system acknowledges fallibility of judges. It has to be kept in mind that a subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure -- contestants and lawyers breathing down his neck. He does not enjoy the detached atmosphere of the higher court. Every error, however gross it may be, should not be attributed to improper motives. The Judges of the High Court have a responsibility to ensure judicial discipline and respect for the judiciary from all concerned. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary if the higher courts express lack of faith in the subordinate judiciary for some reason or other. That amounts to destruction of judiciary from within.

15.
In
Kashi Nath Roy v. The State of Bihar
, AIR 1996 SC 3240, this Court observed under a similar circumstance that in our system appellate and revisional courts have been set up with the presupposition that the lower courts in some measure of cases can go wrong in decision making in law and in fact. The higher courts have been established to correct errors. In cases where intolerable error is pointed out, it is functionally required to correct the error in an appropriate case and in a manner befitting maintaining dignity of the court and independence of the judiciary. The higher court should convey its message in the judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellowed but clear and result oriented and rarely a rebuke."

At this juncture, it would be useful to mention that
Article 311(2)
enshrines that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings so recorded in respect of the charges by the enquiry officer, particularly when they are not borne out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations. Furthermore, proviso to
Article 311(2)
in effect accepts two successive stages with differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry.

In view of the above discussions, it is quite clear that the Hon'ble Inquiry Judge while approving the charge no. 1 primarily based the findings on the correctness of the judicial order passed by the petitioner. The perusal of enquiry report clearly indicates the analysis of the Hon'ble Inquiry Judge while upholding the charge no.1 has placed reliance on number of decisions as if the matter was being examined on appellate side overlooking the very vital fact that in the present case the complainant has not appeared to prove his complaint, rather he has withdrawn his complaint by means of letter/affidavit dated 23.05.2008 addressed to the Hon'ble the Chief Justice and the sole witness Shri Surendra Kumar Sharma, Advocate, who was the Counsel for the complainant in the court below, in his statement deposed in favour of the petitioner. If the statement is viewed microscopically, it reveals that on query he expressed his opinion that if he would have been a Judge and hearing the bail application, he would have also granted the said bail like the petitioner. It is pertinent to add that the Hon'ble Inquiry Judge himself has reached to the conclusion that the factum of extraneous considerations cannot be proved.

In
Roop Singh Negi vs. Punjab National Bank & others
:(2009) 2 SCC 570, the Apex Court held that in the departmental enquiry, mere production of documents is not enough. The contents of documentary evidence has to be proved by examining witnesses. The relevant paras-14, 15 and 23 read as under:-

"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.

15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. The appellant being an employee of the Bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the enquiry officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.

23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the
Evidence Act
may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

In
B.C. Chaturvedi Vs. Union of India
reported in 1995 (6) SCC 749, reiterating the principles of judicial review in disciplinary proceedings, the Apex Court held in para 12 as under:

"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 re appreciate 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 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."(para 12) (emphasis added)

Thus the law is well settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it is open for this Court to interfere in the matter.
In
Kuldeep Singh versus The Commissioner of Police and others
[1999 (2) SCC 10], the Apex Court relying upon the earlier decisions in
Nand Kishore versus State of Bihar
[
AIR 1978 SC 1277], State of Andhra Pradesh versus Sri Rama Rao
[
AIR 1963 SC 1723], Central Bank of India versus Prakash Chandra Jain
[AIR 1969 SC 983] and Rajendra Kumar Indra versus Delhi Administration [AIR 1984 SC 1805] laid down that although the Court cannot sit in appeal over the findings recorded by the disciplinary authority or the inquiry officer in a departmental enquiry, it does not mean that in no circumstance can the Court interfere. It was observed that the power of judicial review available to Apex Court as also to the High Court under the Constitution takes in its stride the domestic enquiry as well and the Courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were per verse. In the instant case, as averred above, the findings of the Hon'ble Inquiry Judge on charge No.1 have been recorded against the petitioner, even though neither the complainant nor any departmental witness (Sunil Kumar Sharma, Advocate) has supported the said charge.

At the cost of repetition, it may be mentioned that three witnesses were cited by the establishment, namely, Surendra Kumar Sharma, Advocate, Raj Bahadur Singh, DGC and Nasir Ali, Advocate. However, only Surendra Kumar Sharma appeared before the Inquiry Judge. No cogent reasons have been assigned as to why the department withheld and did not produce the said two witnesses. Another amiss in the inquiry report is that the Inquiry Judge has referred to some FIR said to have been lodged by Jai Pal Singh Mittal at PS Luxar regarding incident of being beaten up, while they were on way to depose in the inquiry at Allahabad. The petitioner has taken a specific plea that no FIR has ever been lodged at PS Luxar, as referred in the Inquiry Report. In our considered opinion, it was obligatory upon the department to ascertain the correct facts before it being brought to the notice of the learned Inquiry Judge. We are also of the view that it was not proper to have placed reliance on the statement of Surendra Kumar Sharma penned down during preliminary inquiry.

It is also relevant to mention here that the State Government while passing the order of removal dated 10.7.2009 has observed that the petitioner has misused the powers under
Sections 77
and
IPC. The High Court in its counter-affidavit has admitted that the Inquiry Judge has not recorded any finding and observed that the petitioner has misused his powers available under
Sections 77
and
IPC. Thus, the authority has not applied its independent mind cautiously and in proper manner while passing the impugned order dated 10.7.2009.

On examining the entire records as well as facts and circumstances of the case and the findings of Hon'ble Inquiry Judge, we come to the conclusion that petitioner has been held guilty of charges no.1 and 3 without proving the allegations and the charge no.1 has been examined in the manner, as if the issue is being examined by the appellate forum and, therefore, in our considered view the petitioner cannot be punished for an act done while passing a judicial order, without proving the malafide or extraneous considerations and particularly when the complaint was withdrawn by the complainant and he never gave any evidence in support of his allegation.
In
Kashi Nath Roy v. State of Bihar
; (1996) 4 SCC 539 it has been ruled that in our hierarchical judicial system the appellate and revisional courts have been set up with the presupposition that the lower courts in some measure of cases can go wrong in decision making, both on facts as also on law. In these circumstances, we are of considered view that any person loosing in legal battle will always have a grievance and in such case remedy is to approach the appropriate forum. If complainants are taken so lightly and charges are proved without proper evidence, then it would be difficult for the system to function.

So far as charge no.2 is concerned, as averred above, we are in full agreement with the findings of the Hon'ble Inquiry Judge that the petitioner without valid permission over stayed after his transfer vide notification dated 29.04.2006 and acted in breach of circulars of the High Court, which definitely is a misconduct for which the petitioner deserves proportionate punishment in accordance with law.

Taking the holistic view of the matter, the writ petition deserves to be allowed as impugned orders cannot be sustained. Accordingly, we quash the resolution dated 16.05.2009 [Annexure-3] so far as it pertains to the petitioner and the consequential order dated 10.07.2009 [Annexure-17], by which the petitioner has been removed from service. Since, as averred above, that charge no.2 is fully established against the petitioner, we deem it appropriate to remit the matter for reconsideration and awarding proportionate punishment for the delayed compliance of the transfer order dated 29.04.2006 issued by the Court.

Accordingly, the writ petition is allowed in part.

Dated: January 3, 2013 [D.K. Arora,J.] [Rajiv Sharma,J.]

MH/Suresh