Arvind Singh vs State Of U.P. Thru The ...
2013 Latest Caselaw 4962 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- SERVICE BENCH No. - 276 of 2013
 

 
Petitioner :- Arvind Singh
 
Respondent :- State Of U.P. Thru The Prin.Secy. (Appointments) & others
 
Counsel for Petitioner :- Aseem Chandra, Rajeev Singh Chauhan, 					Sanjeev Agnihotri
 
Counsel for Respondent :- C.S.C., A.K. Chaturvedi, A.S.G.
 

 
Hon'ble Rajiv Sharma,J.

Hon'ble Arvind Kumar Tripathi (II),J.

1. This writ petition has been filed by the petitioner for following prayers: -

(a) for issuing a writ, order or direction in the nature of certiorari quashing the order dated 6th February, 2013 by which re-enquiry has been ordered against the petitioner;

(b) for issuing a writ, direction in the nature of certiorari quashing the chargesheet dated 18 April 2011;

(c) for issuing a writ order or direction in the nature of mandamus directing the opposite parties to remove the name of the petitioner from the provisional list and place it in regular list issued vide notification dated 27th of normal 2012; and

(d) issuing a writ order or certiorari in the nature of mandamus directing the opposite parties to forthwith appoint the petitioner to the Indian Administrative Service cadre.

2. It has been mentioned in the writ petition that the petitioner was posted as a Additional Commissioner (Judicial) in Moradabad from July, 2006 to January, 2009. Sometimes in 2009, the then Commissioner Moradabad Division referred for initiation of a disciplinary proceeding against the petitioner in respect of 21 judicial pronouncements to the State Government. An enquiry of this nature cannot be resorted to, unless there are complaints of irregularities or malpractice by the officer concerned, or there is overwhelming evidence of any extraneous consideration in discharge of his duty. The petitioner was transferred in February, 2009 to the post of Municipal Commissioner, Nagar Nigam Moradabad, and thereafter, he was posted as Additional Commissioner (Judicial). Subsequently, the petitioner was transferred as Chief Development Officer District Bijnor. When the petitioner came to know about the above disciplinary proceedings, he submitted a representation to the Principal Secretary (Appointments). On 18 April 2011, a chargesheet was issued to the petitioner containing six charges and Commissioner, Bareilly Division was appointed the enquiry officer. The enquiry officer served a copy of the chargesheet to the petitioner. Petitioner wrote a letter dated 10 January, 2011 that he has already made a representation for dropping the enquiry, as the same was against law. The enquiry officer recommended for dropping of the enquiry. The enquiry officer submitted his report on 1.7.2012. Departmental promotion committee was held in the month of November, 2012 for appointment to IAS cadre. On 26th November, 2012, the minutes of the meeting of DPC was approved. On that, same day Principal Secretary (Appointments) issued a letter to Divisional Commissioner, Moradabad asking for updated status of the cases listed in the chargesheet. On 27.11.2012, a notification was issued by Department of Personnel and Training, Government of India in which petitioner was placed in provisional category. On 5th December, 2012 the Divisional Commissioner, Moradabad Division wrote about the status of the cases, which were subject matter of enquiry against the petitioner, along with the report of the District Government Council (Revenue). The District Government Council has, in his report, mentioned that the enquiry initiated against the petitioner is wrong. Between July, 2012 and December, 2012 the petitioner several times met with Principal Secretary (Appointments) and requested that the disciplinary proceedings, which has been initiated at the very inception, is without jurisdiction and against the law and the enquiry officer has already exonerated the petitioner, and disciplinary proceedings should not be made to stand in the way of the petitioner being appointed in IAS cadre. The petitioner, time and again, requested opposite party no.1 to drop the disciplinary proceeding so that the impediment against him for appointment to the IAS cadre is removed, but opposite party no.1 had not taken a decision on the enquiry report, and thus, the petitioner was placed in the provision of select list. Opposite party no.2 ought to have cleared the appointment of the petitioner considering the fact that the petitioner has been exonerated in the disciplinary enquiry. On 12th February, 2013, the petitioner received a communication dated 6th of February, 2013 from opposite party no.1 that re-enquiry has been ordered against the petitioner in respect of the charges levelled against him. This act is contrary to the principles of natural justice and settled law of the land. It was also submitted that the charge-sheet filed against him is liable to be quashed, as it is in violation of the law.

3. By filing counter affidavit opposite parties have stated that after the charge sheet was served on the petitioner, a representation of the petitioner was received on 11th of January, 2011, which was duly considered, and a decision was taken to initiate the formal departmental proceedings against the petitioner, and in accordance to which an enquiry officer was nominated on 18th of April, 2011, who is a Commissioner, Bareilly Division. The cases, referred in the representation earlier, are based on the decisions of Hon'ble Apex Court and of this Hon'ble Court and are of no help to the cause of the petitioner, and does not protect the petitioner because the protection is available only for the act, which are bona fide, and have not been performed illegally. Petitioner has acted contrary to the law and has passed the orders, which are not permissible in the eyes of law. After receiving the enquiry report on 5th of July, 2012 it was considered that the enquiry report was incomplete, against the rules of natural justice, hence after recommendation of competent authority, a re-enquiry was ordered on 6 February 2013. So far as the promotion from P.C.S cadre to I.A.S. cadre is concerned, the petitioner's case was considered in accordance with the relevant rules and regulations and the details of departmental enquiry and the proceedings against the petitioner was communicated to the Central Government, and that as per the provisions of law enshrined under rule 5 (5) of Indian Administrative Service (Appointment by Promotion) Regulations1995 (in short "The Regulations 1995") the petitioner was provisionally promoted. Since the departmental enquiry was not concluded, hence he could not get the regular promotion in the IAS cadre. An opinion from the Law Department was obtained and it was decided to enquire into the charges framed against the petitioner regarding loss of revenue/financial loss caused to the State Government, and only in order to mislead the enquiry, the petitioner has taken the plea of Judicial Protection Act. The petitioner is not co-operating in the enquiry, and has filed the present writ petition without any substance. It has also been mentioned in the counter affidavit that during his posting as Additional Commissioner, Moradabad Division, the petitioner has passed the several illegal orders, the details of which are mentioned in the charge, hence it was expedient in the interest of justice to enquire into the charges in detail, after providing due opportunity of hearing to the petitioner, In view of this, re-enquiry was ordered. In identical matters even the judicial officers, who have acted contrary to the law, have not been given the benefit of Judicial Protection Act. In all the cases mentioned in the chargesheet, the petitioner has given transferable bhumidhari and Assami rights were granted to private persons, which resulted in loss of revenue to the State Government. In the above decisions total 56. 405 hectare land was involved, which includes urban and rural area.

4. The petitioner filed rejoinder affidavit stating that the petitioner is being unfairly dealt with wherein he is being denied promotion due to pendency of a disciplinary enquiry, which is being conducted in respect of judicial decisions regarding which there has been no complaint, and those decisions were never challenged before any higher forum, and the State instead of seeking judicial redressal is venting its grievance by unfairly holding a departmental enquiry. The veracity or legality of the decisions given by the petitioner had to be tested before a higher judicial forum, and the plea that the government has incurred loss, if accepted, would undermine the independence of the judiciary, hence the enquiry report dated 5th July, 2012 was correct, and the disagreement with the above report is not based on sound reasoning, and thus, the decision making process is seriously flawed. Petitioner, during his tenure as Additional Commissioner, has decided approximately thousand of cases and to single out 21 instances is an act of mala fide on the part of opposite parties. The sole endeavour appears to be to deny appointment by promotion to the cadre of Indian Administrative Service. It was also stated that several persons, who were facing serious charges of financial irregularities, have been granted promotion after a hasty examination by the opposite parties; some of them were facing vigilance enquiry, or had their integrity withheld, or had been awarded adverse entries, which have been commuted by the opposite parties, as a result of which these persons have been appointed by promotion to the cadre of Indian Administrative Service.

5. We have heard learned Senior Advocate Umesh Chandra, assisted by Shri Aseem Chandra, Advocate for the petitioner, and Ms. Sangita Chandra, learned Additional Chief Standing Counsel for State, Mr A.K. Chaturvedi learned counsel for respondent no-3 and Mr. I.H. Farooqui, Assistant Solicitor General of India appearing on behalf of Union of India.

6. It was argued from the side of petitioner that the orders, which have been made basis of the charge sheet, are judicial orders and State Government had a right to challenge the aforesaid judicial orders before the higher forum. It was also submitted that as Judicial Protection Act comes to rescue of the petitioner, hence no action could be taken against him, even if the judicial order is reversed by the higher authority, or the higher administrative authorities do not agree with the outcome of the case. If the disciplinary authority disagreed with the finding of previous enquiry, then the petitioner should have been provided opportunity to explain the situation. Without providing opportunity of hearing to the petitioner before ordering for re-enquiry is an erroneous and arbitrary order. In support of his argument learned counsel relied upon a decision of Hon'ble Apex Court in the case of Yoginath D. Bagde v. State of Maharashtra (1999) 7 SCC 739.

7. It was also argued that wrong exercise of jurisdiction by a quasi-judicial authority or a mistake of law for wrong interpretation of law cannot be the basis for initiating disciplinary proceedings. Learned counsel for petitioner relied upon the case of Ramesh Chander Singh versus High Court of Allahabad and another, (2007) 4 SCC 247, Zunjarrao Bhika Ji Nagarkar v. Union of India and others, 1999 (7) SCC 409 and Kashi Nath Roy v. State of Bihar 1996 (4) SCC 539.

8. It was argued from the side of respondents that the Apex Court in the case of Union of India v. K.K. Dhawan, (1993) 2 SCC 56 has listed six instances when an officer, who exercised judicial or quasi-judicial powers, acting negligently, or recklessly, could be proceeded against by way of disciplinary enquiry. It was also submitted that the present case falls squarely within those instances. It was also submitted that the law does not permit quashing of charge sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge sheet, he must raise the issue by filing a representation and wait for the decision of the disciplinary authority. Neither the disciplinary proceeding, nor the charge sheet can be quashed at initial stage, as it would be a premature stage to deal with the issues. It was also submitted that ordinarily a writ petition does not lie against the chargesheet or show cause notice as it does not give rise to any cause of action. It does not amount to an adverse order, which affects the right of any party, unless the same has been issued by a person having no jurisdiction/competence to do so. It was also submitted that a writ lies when some right of a party is infringed. In fact chargesheet does not infringe the rights of a party. It is only when a final order imposing the punishment or otherwise affecting a party is passed, then it may have a grievance and cause of action. It was also argued that it is open to the disciplinary authority to order the de novo enquiry when it found that the enquiry officer had not followed the correct procedure.

9. Learned counsels for respondents in support of their arguments relied upon the decision of Union of India and others v. Duli Chand, (2006) 5 SCC 680, Secretary Ministry of Defence and others versus Prabash Chandra Mirdha, (2012) 11 SCC 565 and Union of India and others v. P. Thyagarajan, (1999) 1 SCC 733.

10. Before entering into the merits of rival submissions, it will be apt to reproduce the charges so as to ascertain the allegations. Charges are reproduced below: -

"Charge No.1: - You are in the following revision/appeal by passing irregular orders gave Bhumidhari transferable/Bhumidhar with non-transferable rights to the Assami Lessee of category 3 over category 6 (2) Land of public use whereas there is no such mention of any basis in the order in question by which revisionist/appellant so are Assami under category 3 who can be declared Bhumidhar with transferable rights/bhumidhar with non-transferable rights.

1. Revision No.81/07-08 Om Prakash v. Dhyanwati decided on 25.9.2000.

2. Revision No.73/07-08 Mashroor Hasan Khan v. State of U.P. decided on 30.7.2000

3. Revision No.320/07-08 Dwarika Pd. v. Gaon Sabha decided on 28.11.2008

4. Revision No.29/08-09 Tejpal & others v. State of U.P. decided on 15.12.2000

5. Appeal No.36/08-09 Govind Ram v. State of U.P. decided on 26.12.2008

6. Revision No.62/07-08 Mahendra Singh v. State decided on 31.5.2008

7. Appeal No.01/08-09 Sunder & others v. State decided on 25.9.2000

8. Revision No.64/07-08 Abdul Salam v. State U.P. decided on 28.7.2008

9. Appeal No.3/08-09 Smt. Vakila & others v. State of U.P. decided on 22.11.2008

10. Appeal No.20/07-08 Pothi Ram v. State of U.P. decided on 16.3.2008

Documentary Evidence.

In respect to above decision the following evidence would be read -

i) Copies of judgments passed in above Revisions and Appeals

Charge No.2: - You have by passing decision in the following appeal/revision have given Bhumidhari rights to the appellants/revisionists over land under Government Grant Act and non ZA Government Land which cannot be given whereas in the impugned orders there are no grounds under which the appellants/revisionists could be given Bhumidhari rights over land of Government Grants Act and land of Government in Non ZA. Besides there is no such provision under U.P. Zamindari Abolition and Land Reforms Act under which bhumidhari rights could be conferred on appellant/revisionist over land of Government Grant Act of government owned non Zamindari Abolition land.

i) Appeal No.24/06-07 Ram Niwas v. State of U.P. decided on 25.2.2008

ii) Revision No.48/08-09 Dharamveer Singh v. State of U.P. decided on 6.2.2009

iii) Appeal No.41/07-08 Dharampal Singh v. State decided on 31.5.2008

Documentary Evidence

With respect to above charge the following evidence would be read -

i) Copies of judgments in said revision and appeal.

Charge No.3: - You by passing order against law in the following revisions have allowed illegal/fradulent entries to stand whereas there were no such grounds in the impugned orders by which the illegal/fradulent entry in the matters in question could be maintained. Besides there is no provision in U.P. Zamindari Abolition and Land Reforms Act by which the illegal or fradulent entry could be allowed to be maintained.

1. Revision No.31/08-08 Ajab Singh and others v. Chetram State of U.P. decided on 28.12.2008

2. Revision No.74/08-09 Achchan v. State decided on 31.7.2008

3. Revision No.29/05-06 Adarsh Gramin Vidya Niketan v. State decided on 27.7.2008

Documentary Evidence

The following evidence would be read with respect to above charge -

i) Copies of judgments in said revision.

Charge No.4: - You in the following revisions have despite lapse of the period of lease provided by land management committee to the Asami of category 3 have allowed them to remain in possession by the revisionists have got irregular gain whereas there is no ground in the impugned orders by the Asami of category 3 could be allowed to remain in possession despite lapse of the period of lease granted by the Land Management Committee to category 3 Asami. Besides there is no provision under U.P. Zamindari Abolition and Land Reforms Act by which the non-possession of revisionist could be allowed to stand despite the lapse of the period of lease of category 3 Asami granted by Land Management Committee.

Documentary Evidence

The following evidence would be read with respect to above charge -

i) Copies of judgments in above revision.

Charge No.5: - You by passing irregular order in the following ceiling cases have caused irregular gain to the tenure holder.

1. Appeal No.341/06-07 & Appeal No.342/06-07 Jitendra Nath Parmar v. State and Vishwanath Parmar v. State decided on 28.11.2008

2. Appeal No.1/08-09 Rajiv Bakshi v. State decided on 20.02.2009

Charge No.6: - You while deciding revenue cases have not complied with available Act/Rules and have immorally benefited the litigants. In this manner you are guilty of not discharging responsibilities of the post, successfully. This act of yours violation of Rule 3 (1) of the U.P. Government Servant Service Conduct Rules, 1956

Documentary Evidence

1. Copy of rule 3 of the U.P. Government Servant Service Conduct Rules, 1956"

11. In the case of Zunjarrao (supra) the Apex Court has held that initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play in such a matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. It was further held that if every error of law were to constitute a charge of misconduct, it would impinge upon independent functioning of quasi-judicial officers. To maintain a chargesheet against a quasi-judicial authority, something more has to be alleged than a mere mistake of law, for example, in the nature of some extraneous consideration or influenced quasi judicial order. It was further held that the entire system of administrative adjudication where under quasi-judicial powers are conferred on administrative authority, would fall into disrepute if officers performing such administrative functions are inhibited in performing the functions without fear or favour because of constant threat of disciplinary proceedings.

12. In the case of Ramesh Chander Singh (supra) the Apex Court has held that if the High Court were to initiate disciplinary proceedings based on a judicial order, there should have been a strong ground to suspect officers bona fides and the order itself should have been actuated by malice, bias or illegality. The Supreme Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgements/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 judgements of the lower courts. While taking disciplinary action based on judicial orders, the High Court must take care and caution.

13. In the case of Yogi Nath D Bagde (supra) it has been held that the delinquent employee has the right of hearing not only during the enquiry proceedings conducted by the enquiry officer into the charges levied on against him but also at the stage at which those findings are considered by the disciplinary authority and the later, namely the disciplinary authority forms a tentative opinion that it does not agree with the findings recorded by the enquiry officer. If the findings recorded by the enquiry officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. Formation of opinion should be tentative and not final. It is at this stage the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the disciplinary authority proposes to disagree with the findings of the enquiry officer. This is in consonance with the requirement of article 311 (2) of the Constitution of India. It has further been held that so long as a final decision is not taken in the matter, the enquiry shall be deemed to be pending. Mere submission of findings to the disciplinary authority does not bring about closure of enquiry proceedings. The enquiry proceedings would come to an end only when the findings have been considered by the disciplinary authority and the charges are either held to be not proved or found it to be proved and in that event punishment is inflicted upon the delinquent. That being so the "right to be heard"could be available to the delinquent up to the final stage

14. In the case of Kashi Nath Roy (supra) the apex court has held that it can not be forgotten that in our system, like elsewhere, appellate and revisional courts have been set up on the presupposition that lower courts odour in some measures of cases go wrong in decision-making, both on facts as also on law and they have been knit up to correct those orders. The human element in justice being an important element, computer like functioning cannot be expected of the courts, however hard they may try and keep themselves precedent trodden in the scope of these creations and in the manner of judging.

15. A perusal of the charges framed against the petitioner reveals that all the charges are in respect of judicial orders passed by the petitioner. 10 cases are mentioned in charge 1, 3 cases are mentioned in charge of number 2, three cases are mentioned in charge number 3, 2 cases are mentioned in charge number 4, two cases are mentioned in charge number 5 and a general charge has been mentioned in charge number six. It is also relevant to mention that no oral evidence was mentioned in the charge sheet to be produced to against the petitioner. All the evidences are copy of decisions given in those cases and copy of rule 3 (1) of U.P. Government Servant Services rules 1956.

16. Annexure - 1 to the writ petition is the letter dated 06-02-2013 of Special Secretary State of U.P Commissioner Bareilly Division. In this letter reference has been given of the letter dated 5th July, 2012 by which enquiry report against the petitioner was submitted. It has been mentioned in this letter that you have not inspected the spot, you have not annexed to the reply of the delinquent officer hence it is not clear that for what motive the judicial authority has been misused. It has also been mentioned that you have not annexed in the report regarding date fixed for hearing the delinquent employee, cross-examination and you have also not done a proper enquiry.

17. A perusal of the counter affidavit also reveals that it has nowhere been mentioned that the delinquent officer was provided opportunity to submit his side and no notice was issued to him before disagreeing with the enquiry report dated 5th July, 2012. This act is certainly not in consonance with the decision of the Apex Court in Yoginath D. Bagde's (supra) case.

18. In the case of Union of India v. K.K. Dhawan (supra) it has been held that the officer who exercises judicial or quasi-judicial powers acting negligently or recklessly could be proceeded against by way of disciplinary action. The Apex Court has listed six instances when such action would be taken: -

1 where the officer had acted in a manner as to reflect on his reputation for integrity or good faith or devotion to duty;

2 if there is prima facie material to show recklessness or misconduct in the discharge of his duty;

3 if he has acted in a manner which is unbecoming of a government servant;

4 if we had acted negligently or that he omitted the prescribed condition which are essential for the exercise of a statutory powers;

5 if he had acted in order to unduly favour a party;

6 if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago "though the bride may be small, yet the fault is great."

19. The wording in charge no.1 is that by passing irregular orders petitioner gave Bhumidhari transferrable/Bhumidhari rights with a non-transferable rights to the Assami/Lessee of category 3 over category 6 (2) land of public use. The words in charge no.2 are also the same but regarding to the land under a Government Grant Act and non-Z.A. government land. In charge no.3 it has mentioned that by passing orders against law the revisions have been allowed and illegal/fraudulent entries were allowed to stand without any ground. In charge no.4 it has been mentioned that despite lapse of the period of lease provided by land management committee to the Asami of category 3 have allowed them to remain in possession and by that the revisionists have given irregular gain. In charge no.5 it has been mentioned that by passing irregular order in ceiling cases petitioner has caused the illegal gain to the tenure holder. In charge number six it has been mentioned that while deciding revenue cases petitioner has not complied with the available acts/rules and have immorally benefited the litigants. A perusal of these charges go to show that all these charges are vague. The State has not challenged the above orders before the appropriate forum. The orders have become final. On the basis of these vagueness in charges, it cannot be said that the case of present petitioner falls squarely within the six instances listed in the decision of K.K. Dhavan's case.

20. The charge sheet and also the order of initiating departmental enquiry do not mention the basis of the allegations made in the charge sheet. It is not the case of the respondents that there was any complaint from any party, it is not the case of the respondents that these orders were challenged successfully before the higher authorities, it has also not been alleged that while challenging the aforesaid orders the higher authority has smelt some rat and directed the Departmental enquiry. In absence of such material the charge sheet will be said to be based on general and vague allegations. It also reveals that the disciplinary proceeding has been initiated without any reason or upon information which is vague or indefinite. As has been held by the Apex Court in the case of Zunjarrao (supra) there must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. In the same case the Apex Court has held that to maintain any charge sheet against the quasi-judicial authority something more is to be alleged than a mere mistake of law. A perusal of the charge sheet reveals that "something more than a mere mistake of law" has not been alleged. This clearly goes to show that a mistake of law is not a ground to initiate the proceeding against the delinquent officer.

21. The enquiry report has been filed by the State along with counter affidavit, which is C.A.2. The relevant portion of that enquiry report is reproduced below: -

"foospuk ,oa fu"d"kZ % esjs }kjk vkjksi i=] lk{;ksa] vkjksih vf/kdkjh dk Li"Vhdj.k fnukad 14&7&2011 ds lkFk layXu izeq[k lfpo] fu;qfDr vuqHkkx&2 m0iz0 'kklu dks LkEcksf/kr i= fnukad 11&1&2011] i= la[;k [email protected];[email protected]&13 fnukad 28&6&2012 o mlds lkFk layXu 2007 ¼4½ ,l0lh0lh0 ist 247] jes'k pUnz flag cuke mPp U;k;ky;] bykgkckn o vU;] ek0 loksZPp U;k;ky; o i= la[;k [email protected];[email protected]&13 fnukad 29&6&2012 ds lkFk layXu ek0 loksZPp U;k;ky; dh fof/kd O;oLFkk 1999 ,l0lh0 ist 2881] tqatkjko Hkhdkth ukxjdj cuke ;wfu;u vkQ bf.M;k o vU; dk Hkyh izdkj voyksdu fd;k x;kA

vkjksi i= ds voyksdu ls fofnr gksrk gS fd lHkh vkjksi vkjksih vf/kdkjh Jh vjfoUn flag ds vij vk;qDr ¼U;kf;d½] eqjknkckn e.My] eqjknkckn ds in ij rSukrh ds nkSjku U;kf;d izfdz;k ds vaRkaxZr fuxjkfu;ksa ,oa vihyksa esa ikfjr vkns'kksa ls lacaf/kr gSa vkSj lk{; Lo:i Hkh mUgha vkns'kksa dh izfr;kWa layXu dh xbZ gSA vc iz'u ;g mBrk gS fd D;k fdlh vf/kdkjh ds fo#) U;kf;d izfdz;k ds varxZr ikfjr vkns'kksa ds vk/kkj ij dksbZ foHkkxh; tkWap dk;Zokgh laikfnr dh tk ldrh gS vFkok ugha\

bl lEcU/k esa vkjksih vf/kdkjh }kjk ek0 loksZPp U;k;ky; dh fof/kd O;oLFkk 2007 ¼4½ ,l0lh0lh0 ist 247] jes'k pUnz flag cuke mPp U;k;ky;] bykgkckn o vU;] flfoy vihy la[;k 2015 o"kZ 2006 fu.kkhZr fnukad 26&2&2007 lanfHkZr dh xbZ gS] ftlds i`"B 255 esa ek0 loksZPp U;k;ky; }kjk ;g fl)kUr izfrikfnr fd;k x;k gS fd &

"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, the High Court must take extra care and caution.

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.

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 the other"

bl izdkj ls ek0 mPpre U;k;ky; us tsM- ch0 ukxj cuke ;qfu;u vkQ bf.M;k] 1999 ¼4½ ,p0lh0lh0 ist 409 ¼iSjkt 40&44½ ,oa jes'k pUnz flag cuke gkbZdksVZ ,V bykgkckn] 2007 ¼4½ ,l0lh0lh0 ist 247] ds iSjk 43 esa fuEu fl)kar izfrikfnr fd;k x;k gS&

"In 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. Since in s um and substance misconduct is sought to be inferred by the appellant having committed on the error of law, the charge sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. Other words, to maintain any charge sheet against a quasi judicial authority something more has to be alleged that a mere mistake of law e.g. in the nature of some extraneous consideration influencing the quasi judicial orders. Since nothing of the sort is alleged herein the impugned charge sheet is rendered illegal. The charge sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings"

ek0 mPpre U;k;ky; dh mi;qZDr fof/kd O;oLFkkvksa ls ;g fu"d"kZ fudyrk gS fd ;fn dksbZ =qfV tks U;kf;d vf/kdkjh }kjk vius {ks=kf/kdkj dk iz;ksx djus esa dh xbZ gks] mldks nqjkxzg ekuk tkos rks ;g U;kf;d vf/kdkjh ds Lora= dk;Z iz.kkyh ij ,d izdkj ls dqBkjk?kkr ekuk tkosxkA ;fn bl vkjksi dks eku fy;k vkos rks fdlh Hkh U;kf;d ;k v)Z U;kf;d ihBklhu vf/kdkjh dks Lora= dk;Ziz.kkyh ij jksd yxkuk gksxkA leLr U;kf;d ;k v)Z U;kf;d {ks=kf/kdkj] ftlds varxZr vf/kdkfj;ksa dks 'kfDr iznku dh tkrh gS] ml ij nq"izHkko iMs+xk rFkk ,sls vf/kdkjh Lora= o fu"i{k :i ls dk;Z laikfnr ugha dj ik;saxs] ftlls leLr U;kf;d dk;Z iz.kkyh ij nq"izHkko iMs+xkA

,slh fLFkfr esa ek0 loksZPp U;k;ky; dh mDr O;oLFkkvksa dks n`f"Vxr vkjksih vf/kdkjh Jh vjfoUn flag rRdkyhu vij vk;qDr ¼U;kf;d½] eqjknkckn e.My] eqjknkckn lEizfr eq[; fodkl vf/kdkjh] fctukSj }kjk U;kf;d ekeyksa esa ikfjr fu.kZ;ksa ds fo#) i{kdkj dks l{ke U;k;ky; esa pkjktksbZ djus dk iw.kZ vf/kdkj izkIr gSA vr% mDr ekeyksa esa tc rd vipkjh vf/kdkjh ds fo#) ;ksftr vihyksa esa mPprj U;k;ky; ls dksbZ izfrdwy vkns'k ikfjr u gks tkos] rc rd vipkjh vf/kdkjh }kjk U;kf;d izfdz;k ds varxZr ikfjr fu.kZ;ksa ds vk/kkj ij bl Lrj ij mUgsa nf.Mr fd;k tkuk U;k;ksfpr izrhr ugha gksrk gSA bl izdkj vipkjh vf/kdkjh ds fo#) yxk;s x;s leLr vkjksi fl) ugha gksrs gSA"

22. After going through the above portion, we are of the view that the Disciplinary Authority has erred in not giving an opportunity of being heard to the petitioner, as was required by the decision of the Hon'ble Apex Court in Yoginath D. Bagde's (supra), and thus, the order for re-enquiry dated 6.2.2013 is bad in the eyes of law, and is liable to be quashed.

23. At this stage, we are not inclined to quash the charge sheet, as vide enquiry report dated 4.7.2013 the petitioner has been exonerated, hence, there is no need to quash the charge sheet.

24. From the above discussions, the writ petition is partly allowed. Order dated 6.2.2013 ordering the re-enquiry is set aside. The Disciplinary Authority is directed to provide a reasonable opportunity of hearing to the petitioner after he is informed of the reasons on the basis of which the Disciplinary Authority proposes to disagree with the finding of the Enquiry Officer. After providing opportunity, as directed above, the Disciplinary Authority shall decide the matter expeditiously, preferably within a reasonable period, i.e. within three months, from the date reply is received, and pass a reasoned and speaking order.

Order Date :- August 7, 2013

Anupam