Ali Ahmad Samdani vs State Of U.P.Through Secy.
2017 Latest Caselaw 8151 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

RESERVED
 

 
Case :- SERVICE BENCH No. - 470 of 2000 
 
Petitioner :- Ali Ahmad Samdani 
 
Respondent :- State Of U.P.Through Secy. 
 
Counsel for Petitioner :- H.S.Jain,Anjum Ara,Shahid Ali Siddiqui 
 
Counsel for Respondent :- C.S.C., Manish Kumar, R.Sharma, Sanjay Bhasin, U.N.Mishra 
 

 
Hon'ble Dr. Devendra Kumar Arora, J.

Hon'ble Rajnish Kumar, J.

Heard Mr. H.S. Jain, learned Counsel for the petitioner and Mr. Upendra Nath Mishra, learned Counsel for the opposite parties No.2 to 4.

Petitioner, a judicial officer, has filed the instant writ petition questioning the correctness and validity of the order of removal dated 1.2.2000, which was served upon the petitioner vide letter dated 2.2.2000 contained in Annexure No. 1 to the writ petition. The petitioner inter-alia has also sought for quashing the inquiry report dated 1.5.1999 contained in Annexure No. 40 to the writ petition.

Shorn off unnecessary details, the facts of the case are as under :

In the year 1975, the petitioner was appointed in the U.P. Judicial Service and was posted as Munsif Magistrate at Sultanpur. Thereafter, he remained posted at different places as Munsif Magistrate. In the year 1985, he was posted as Munsif Magistrate at Lansdown, District, Pauri.

According to the petitioner, when he was posted as Munsif Magistrate at Lansdown, District Pauri, the District Judge, Pauri, namely, Shri D.L. Soni started harassing him unnecessarily. Therefore, he made representations to the High Court against the District Judge. On knowing this fact, the District Judge became annoyed and his harassment enhanced. . Subsequently, when Hon'ble the Administrative Judge visited Lansdown Judgeship in the year 1986, the District Judge instigated some lawyers to make complaint against the petitioner and on his instigation, some lawyers of the Judgeship made frivolous complaint against the petitioner. Thereafter, the petitioner was transferred from Pauri to Varanasi in the year 1986. Immediately after 45 days from the date of assuming charge at Varanasi, the petitioner was placed under suspension in the month of September, 1986 and the matter was referred to the Administrative Tribunal, U.P., for conducting the disciplinary proceedings against the petitioner.

Feeling aggrieved by the order of suspension, the petitioner preferred a writ petition No. 16578 of 1987, which was disposed of vide order dated 9.8.1989 with the direction to complete the inquiry within six months.

It has been stated that despite the order of this Court dated 9.8.1989, charge-sheet was served upon the petitioner on 2.3.1990 along with the letter dated 16.2.1990. On receipt of the charge-sheet, the petitioner preferred several applications to the Administrative Tribunal as well as the High Court to make him available the relevant documents and statements of the witnesses so as to enable him to tender reply but no heed was paid. After four months, the petitioner received reply to his letters dated 1.6.1990 and 16.6.1990 by the Administrative Tribunal vide letter dated 22.6.1990. Thereafter, the petitioner made applications dated 23.12.1992 and 23.4.1993 to the Administrative Tribunal for inspecting the relevant record but he was not allowed to do so. In the meantime, vide letter dated 13.2.1995, the petitioner was informed by the then District Judge, Shahjahanpur (Sri V.S. Bajpai) that he has been appointed as Inquiry Officer and the petitioner was required to file written statement against the charge-sheet.

Counsel for the petitioner has submitted that when the letter dated 13.2.1995 was received by the petitioner, then, he came to know that charge-sheet was actually issued in 57 pages along with bio-data running in seven pages, whereas the petitioner was served with only 34 pages of the charge-sheet on 2.3.1990. Therefore, the petitioner moved several representations to the Inquiry Officer to furnish him the complete pages of the charge-sheet, copy of the full bio- data, copy of the statements of the witnesses and copy of the the relevant documents but no heed was paid. Subsequently, vide letter dated 24.6.1996, the Inquiry Officer informed the petitioner that though he had inspected the complete file of inquiry relating to incidents at Lansdown, Pauri on 12.7.1995, however, he could inspect the file again. In pursuance to the letter dated 24.6.1996, the petitioner, vide letter dated 27.7.1996, specified the documents which were required to be inspected and also for supplying the necessary documents before filing the written statement and informed the same to the Inquiry Officer.

According to the petitioner, despite the aforesaid letter dated 27.7.1996, the petitioner was neither supplied with the copies of relevant documents and copies of statements of the witnesses nor he was allowed inspection of the desired documents. In the aforesaid compelling circumstances, the petitioner at last submitted his written statement to the Inquiry Officer on 11.10.1996, denying therein the charges levelled against him. On 10/11.12.1996 at Lansdown, the oral evidence of Sri Mahabir Singh Rawat, Sri Prayag Dutt Bhdola, Sri Tara Chand Khandelwal, Sri Vijai Dhondhiyal, Sri Narendra Singh Rawat, Sri Shanker Dutt Pant, Sri Ram Dayal, Sri Anirudh Kumar Sundariyal, was recorded. Smt. Nanda Sharma and Sri Bhagwati Prasad Dhondhiyal were also summoned by the department on 10.12.1996 but they did not turn up either on 10.12.1996 or 11.12.1996. The examination-in-chief of Sri Prayag Dutt Bhadola was completed on 10.12.1996 and he was required to be present on 11.12.1996 for cross-examination but he did not turn up.

After 11.12.1996, the Inquiry proceeding resumed in the month of April, 1998. On 23.4.1998, the evidence of Bhuwan Prakash Sharma was recorded at Bijnor. Since the petitioner was ill, therefore, he requested for postponement of the inquiry but it was turned down and on 14.5.1998, the statement of Smt. Nanda and Smt. Bhagwati Prasad Dhondhiyal was recorded. On 28.5.1998, the petitioner requested the Inquiry Officer to summon those witnesses whose statement was recorded on 14.5.1998 for cross-examination, which was rejected by the Inquiry Officer. Thereafter, the petitioner preferred an application for summoning the said witnesses for cross-examination on his expenses, which too was rejected by the Enquiry Officer. Subsequently, the petitioner moved application for summoning the said witnesses as defence witness, which was also rejected by the Enquiry Officer. In these backgrounds, the petitioner moved application dated 1.12.1998 to the High Court for issuance of necessary direction to the Inquiry Officer for production of the said witness for their cross-examination and also for issuance of necessary direction. The High Court, vide letter dated 12.3.1999, directed the Inquiry Officer to consider the request made by the petitioner in the representations dated 30.11.1998 and 1.12.1998 but the Inquiry Officer turned deaf ear.

Subsequently, in pursuance of the order dated 12.3.1999, the petitioner submitted an application on 24.3.1999 to the Inquiry Officer and prayed that his representations dated 30.11.1998 and 1.12.1998 be considered. The Inquiry Officer, vide order dated 2.4.1999, rejected the application dated 24.3.1999. Thereafter, the Inquiry Officer submitted its report on 1.5.1999 holding the petitioner guilty. The said inquiry report dated 1.5.1999 was sent to the petitioner vide letter dated 26.5.1999 for comments. In response, the petitioner submitted his comments to the inquiry report on 15.7.1999 but there was defect in mentioning serial numbers of annexures, therefore, the petitioner rectified the said mistake vide application dated 20.7.1999.

It has been asserted by the Counsel for the petitioner that after submission of the comments to the inquiry report by the petitioner, neither any opportunity was given to him to putforth his version nor he was apprised in respect of proposed punishment and ultimately, the order of removal dated 1.2.2000 was passed, which is in total disregard of the principle of natural justice.

Mr. H.S. Jain, learned Counsel for the petitioner has attacked the order of removal firstly on the ground that the High Court administration had no power or jurisdiction to withdraw an enquiry from the Administrative Tribunal and to handover the same to a District Judge. He submits that under the Administrative Tribunal Act, the inquiry is conducted by the three Hon'ble Members of the status of the High Court Judge but in the present case, once the Tribunal had taken cognizance, it was not open for the High Court on its administrative side to withdraw the inquiry from the Tribunal and to handover to an Officer. There is no provision under Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 (hereinafter referred to as Rules, 1947) to withdraw an inquiry and for handing over the same to one man inquiry.

While placing reliance upon Vikramajeet Singh Vs. High Court : 1997 (10) SCC 447, learned Counsel for the petitioner has submitted that the Apex Court has clearly held that the procedure for holding inquiry against the judicial officer, as laid down in the Rules detracts from the control that vests in the High Court under Article 235 of the Constitution. Therefore, the order passed by the High Court transferring the inquiry from the Tribunal to District Judge was without jurisdiction for the reason that the order of transfer has not been passed under the authority of the Hon'ble Governor and secondly once the inquiry has been entrusted to the Tribunal same cannot be withdrawn and entrusted to District Judge.

The second ground of attack of the impugned order of removal is that much prejudice has been caused to the petitioner in the manner in which the inquiry has been held and the material on the basis of which the inquiry officer had submitted its report even denying the petitioner to adduce evidence in defence and refuse to allow him to cross-examine witnesses. It has been contended that most of the charges levelled against the petitioner are in respect of his decisions taken in his capacity as Judicial Officer. Some cases decided by the petitioner have been mentioned in charges No. 1, 2 and 3. The cases decided by the petitioner had attained finality as in most of the cases no appeal or revision has been preferred by the aggrieved persons or by the State/department, whereas in some cases, appeal was filed and decided without any comment on the working of the petitioner as Judicial Officer. Therefore, on administrative side, no motive can be attributed to the working of the Judicial Officer i.e. the petitioner.

Referring the charge-sheet, it has been argued that in charge Nos. 4 and 6, it has been alleged that petitioner had relations with one Mrs. Nanda, who was being carried on scooter by him. There is another allegation that the petitioner took interest in a girl, who was produced before the Sub Divisional Magistrate. According to the petitioner, during the stay of the petitioner at Lansdown in the year 1985-86, neither such allegation by Mrs. Nanda was leveled against him nor any complaints in writing were made by anyone. For the first time in the charge-sheet, the said allegation came to light from where and how it was collected is not known to anyone and there is no allegation that the petitioner was influenced or prejudiced in discharging his judicial functions due to such alleged relations.

It has been vehemently asserted that neither the husband of Mrs. Nanda nor any member of family has made any complaint. Mrs. Nanda was not allowed to be cross-examined by the petitioner. She was not even allowed to be summoned for cross-examination even on the expenses of the petitioner. The petitioner made written request to the Inquiry Officer to summon Mrs. Nanda as a defence witness but the said request was also turned down. Even the High Court on administrative side directed the Inquiry Officer to consider the application of the petitioner in this regard, but it also went in vain. In these backgrounds, his submission is that Mrs. Nanda, whose evidence has been lastly recorded and is being relied upon by the Inquiry Officer, was not identified by any person and as such, the statements of Mrs. Nanda recorded by the Inquiry Officer cannot be taken into consideration and form basis of the report and the same was wrongly relied upon to prove the charge.

As regard the charge of purchase of property by the petitioner at Lansdown, the assertion of the petitioner is that he and his wife had separately purchased a very small piece of land through registered sale deed by paying market price according to the circle rate determined by the Collector, which was duly communicated to the High Court. Since the land was purchased by paying market value as per circle rate, no objection was raised under the Stamp Act. Thus, the deed which has been duly registered under the provisions of the Registration Act after complying the provisions of Stamp Act, the employer cannot raise any question in a departmental proceedings and say that the land was of higher value. Moreover, the Inquiry Officer has not been able to fix the actual value of land and has not held that how the land was purchased at higher rate than shown but found the charge to have been proved on this count also. Thus, the Inquiry Officer acted with a predetermined mind to harm the petitioner.

As regard the charge No.7, it has been vehemently asserted that the decision taken by the petitioner as Judicial Officer acting under Section 446 (3) Cr.P.C. and on the basis of law reported in 1982 Cr.L. J.2333, the petitioner accepted the application of sureties for remitting the surety-amount. No appeal or revision was filed against the said order, but the Inquiry Officer has wrongly held the petitioner guilty. His submission is that if two views are possible and the Officer had taken one view, especially on the basis of some case law, he cannot be penalized for the said decision. Thus, the mistaken view of law cannot be a ground for departmental enquiry.

To strengthen his submission, learned Counsel for the petitioner has relied upon Union of India and another Vs. R.K. Desai : 1993 (2) SCC 49, Braj Kishore Thakur Vs. Union of India and others : 1997 (4) SCC 65, Kuldeep Singh Vs. Commissioner of Police and others : 1999 (2) SCC 10, Zanjarrao Bhikaji Nagarkar Vs. Union of India and others : 1999 (7) SCC 409, Hardwari Lal Vs. State of U.P. and others : 1999 (8) SCC 582 and Ramesh Chander Singh Vs. High Court of Allahabad and another : 2007 (4) SCC 247.

Per contra, Mr. Upendra Nath Mishra, learned Counsel for the opposite parties No.2 to 4 has submitted that the petitioner was appointed on the basis of competitive test held by the Public Service Commission as Additional Munsif, Sultanpur w.e.f. 5.4.1975 and was made confirmed as such on 10.11.1978. During service career, several adverse remarks were reported from time to time viz. from the year 1977-1978, from which it is manifestly clear that the concerned District Judge has observed that the judgments given by the petitioner were slipshod and below the mark and that his relation with the members of the Bar was tense on account of which, he was transferred from Sultanpur; from the entry of 1978-1979, it appears that he was generally not punctual in sitting in Court; his knowledge of civil and criminal law required to be improved; he was assessed to be a poor officer but subsequently on consideration of his representation, the term "poor" was deleted by an order dated 23.12.1981 by the then Administrative Judge-VI. As regard to the annual remark for the year 1982-83, the petitioner earned the remarks to the effect that his judgments did not discuss full facts and evidence and were found to be sketchy; he was not amenable to the advice of the District Judge; on overall assessment, the District Judge found him to be hardly tolerable. There were complaints about corruption and misconduct also. He was also not found to be fair and impartial. The District Judge had not certified his integrity and has withheld the certificate for the time being.

Thus from the service record, it is quite apparent that the service record of the petitioner always remained blemished for one reason or the other and it is wrong to say that the petitioner has enjoyed good reputation and was a sincere officer.

As regard the complaint against the petitioner, Counsel for the opposite parties has submitted that while the petitioner was posted as Munsif Magistrate, Lansdown, Pauri, certain complaints against the conduct and behaviour were received by the High Court. The then Hon'ble Administrative Judge took up the issue for necessary consideration and scrutiny and after perusal of materials on record, the then Administrative Judge directed for keeping the matter before the Administrative Committee and as such the entire matter along with recommendation (note) of the Administrative Judge. The Administrative Committee considered the issue in its meeting dated 26.8.1986 and resolved that the petitioner be placed under suspension and disciplinary inquiry be conducted against him by the Administrative Tribunal, Lucknow. Pursuant to the aforesaid decision of the Administrative Committee, the petitioner was placed under suspension vide Court's Office Memorandum no. C-1007/86 dated 11.9.1986 w.e.f. 12.9.1986. The then Hon'ble Administrative Judge (II) observed that the petitioner, who was posted as Munsif Magistrate Lansdown (Pauri) should immediately be sent elsewhere in view of the complaints against him and also in view of gravity of the matter. Thereupon vide order of Hon'ble the Chief Justice dated 21.7.1986, he was transferred from Pauri to Varanasi on administrative ground where he took over charge on 2.8.1986. Thereafter, draft charges, memo of evidence against the petitioner and service particulars were sent to the Government vide Court's D.O. Letter dated 22.7.1988. After due correspondence, the Government returned all the documents relating to disciplinary proceedings against the petitioner for being referred directly to the Administrative Tribunal by the Court on account of U.P. Disciplinary Proceedings (Administrative) (3rd Amendment) Niyamavawali, 1989, vide notification No. 5016/39 (4)-43(24)/79, dated 3.11.89.

Consequently, the matter of the petitioner along with draft charges, memo of evidence and service particulars was referred to the Administrative Tribunal vide Court's D.O. letter dated 20.1.1990. Meanwhile the petitioner moved the applications for his reinstatement. On consideration of the applications dated 21.12.1989 and 21.2.1990 of the petitioner, order of his suspension was revoked by Administrative Committee vide its resolution dated 22.2.1990 and he was reinstated vide Court's Office Memorandum No. C-253/90, dated 2.3.1990.

It has been submitted that the petitioner made representation dated 24.7.1990 for quashing of disciplinary proceedings and recalling the reference made to Administrative Tribunal. The aforesaid representation was considered in the meeting of the Administrative Committee dated 20.7.1991 but the same was rejected.

Clarifying the position, it has been submitted that pursuant to the Administrative Committee's resolution dated 6.8.1994 all the inquiries including the inquiry against the petitioner pending before the Administrative Tribunal were withdrawn and the inquiry pertaining to the petitioner was entrusted to Sri D.P. Gupta, District Judge, Shahjahanpur vide Administrative Committee's resolution dated 22.2.1995.

It has also been brought to the knowledge of the Court that that another disciplinary inquiry against the petitioner was initiated vide Administrative Committee resolution dated 16.8.1994 on consideration of the report of Hon'ble Mr. Justice Palok Basu (since retd.) regarding complaint of Smt. Raj Kumari against the petitioner while he was posted as Munsif, Pilibhit and as such he was again placed under suspension vide court's office memorandum no. 836/94 dated 31.8.1994. Further it was resolved that Sri D.P. Gupta presently District Judge, Shahjahanpur be appointed as Inquiry Officer and he shall complete the inquiry preferably within a month. The Inquiry Officer, after concluding inquiry, submitted its report dated 11.3.1996 to the High Court in the matter relating to Pilibhit. The report dated 11.3.1996 of the Inquiry Officer was considered by the Administrative Committee in its meeting held on 2.8.1996 and it was resolved that the matter be dropped. Consequently, the suspension order was revoked and he was reinstated vide court's office memorandum no. C-642/CF ''A'/96 dated 9.8.1996. As regard the disciplinary inquiry against the petitioner pertaining to Lansdown, Pauri which was earlier withdrawn from Administrative Tribunal, Lucknow, and was entrusted to Sri D.P. Gupta, District Judge, Shahjahanpur, who after concluding the inquiry submitted its report to the Court on 1.5.1999. The Court, on its consideration, sent a copy of the aforesaid inquiry report dated 1.5.1999 to the petitioner through District Judge, Gonda for furnishing his comments on the report, through Court's D.O. letter no. C-299/CF ''A'/99 dated 26.5.1999. The petitioner submitted his comments dated 15.7.1999 on the inquiry report to the Court and the same was considered in the meeting of Administrative Committee held on 10.9.1999, wherein it was resolved to place the matter before Full court for its consideration.

Consequent to the aforesaid resolution, the Inquiry Report dated 1.5.1999 submitted by the Inquiry Officer and comments dated 15.7.1999 of the petitioner, were considered in Full court meeting held on 20.11.1999, wherein the report of the Inquiry Officer was accepted and it was decided to remove the petitioner from service. Thereafter, a copy of the inquiry report dated 1.5.1999 and comments dated 15.7.1999 of the petitioner was sent to the Secretary, Government of U.P., Appointment Section-4, Lucknow through Court's D.O. Letter No. C-632/CF ''A'/99 dated 27.11.1999 with the request to obtain orders of the Government for removal of the petitioner from service and send the same to the Court at an early date.

Later on, the petitioner made a representation dated 22.11.1999 to the High Court, requesting therein that he came to know that the High Court has recommended to award some harsh punishment upon him, therefore, the matter may kindly be re-considered sympathetically and mercifully. The matter of the petitioner along with other officers were again considered in Full Court held on 23.1.2000 and it was decided that the matter would not be re-considered. The Government after due consideration of the inquiry report dated 1.5.1999 submitted by Inquiry Officer, and comments thereon submitted by the petitioner, issued the order bearing No. 4374/II-4-26/2 (1)/77 dated 1.2.2000 removing the petitioner from service with immediate effect, which is impugned in the instant writ petition.

As regard the assertion of the petitioner, it has been asserted by the respondents's Counsel that the inquiry was conducted in respect of the charges which were stated in the charge sheet alongwith the covering letter dated 16.2.1990. The petitioner was given necessary documents and even he was allowed to inspect the complete files of inquiry. It is wrong to say that he was not supplied copies of the statements of witnesses recorded during the course of investigation as the petitioner vide letter dated 17.1.1996 had admitted receipt of copies of depositions.

With regard to affording opportunity during the course of inquiry, it has been asserted that at every stage the petitioner was given ample opportunity. It is wholly incorrect to say that the petitioner was not given opportunity to cross examine the witneses or to summon and examine his witnesses. Therefore, it is incorrect to assert that the inquiry is vitiated in law.

We have heard the submissions made by the parties and also gone through the record pertaining to inquiry as well as service record of the petitioner. So far misconduct committed by the petitioner is concerned, we have to consider as to what is the meaning and scope of misconduct as defined in various dictionaries as well as in various judgments of the apex court.

The Supreme Court, in S. Govinda Menon v. Union of India, AIR 1967 SC 1274, has held as under :-

".......It is not necessary that a member of the service should have committee the alleged Act or omission in the course of discharge of his duty as a servant of the Government in order that it may form the subject matter of disciplinary proceedings. In other words, if the Act or omission is such as to reflect the reputation of the Officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that Act or omission..... The test is whether the Act or omission has some reasonable occasion with nature and condition of his service or where the Act or omission has caused any reflection upon the reputation of the member of the service for integrity or devotion of duty as a public servant...... The proposition put forward was the quasi-judicial orders, unless vacated under the provisions of the Act, are final and binding and cannot be questioned by the Executive Government through disciplinary proceedings.... The charge is, therefore, one of misconduct and recklessness disclosed by the uttar disregard of the relevant provisions......But in the present proceedings what is sought to be challenged is not the correctness or the legality of the decision of the Commissioner but the conduct of the appellant in the discharge of his duty as Commissioner. The appellant was proceeded against because in the discharge of his function, he acted in utter disregard of the provisions of the Act, and the Rules. It is the manner in which he discharges his function that brought up in these proceedings.... It is manifest, therefore, that though, the propriety and legality of the sanction to the leases may be question in appeal or revision under the Act the Government not precluded from taking disciplinary Act if there is proof that he has acted in gross recklessness in the discharge of his duties or that he failed to Act honestly or in good faith or that he omitted to observe, the prescribed conditions which are essential for the exercise of the statutory power."

While deciding the aforesaid case in S. Govinda Menon (supra), the Hon'ble Supreme Court had relied upon the judgment in Pearce v. Foster, (1966) 17 QBD 536, wherein it had been held as under :-

"If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal."

The Supreme Court, in Union of India and ors. v. K.K. Dhawan, AIR 1993 SC 1478, very heavily relied upon its earlier judgment in S. Govinda Menon's case (supra) and observed that the Officer who exercises judicial or quasi-judicial powers Acts, negligently or recklessly or in order to confer undue favour on a person, is not acting as a Judge and in the disciplinary proceedings it is the conduct of the Officer in discharge of his official duties and not the correctness or legality of his decisions or judgments which are to be examined as the legality of the orders can be questioned on Appellate or Revisional Forum. In such case, the Government cannot be precluded from taking the disciplinary action for violation of the Conduct Rules. The Court summarized some circumstances in which disciplinary action can be taken, which are as under :-

"(i) where the Officer had acted in a manner as would reflect on his reputation or integrity or good faith or devotion of duty;

(ii) if there is prima-facie material to show, recklessness or misconduct in the discharge of his duty;

(iii) if he has acted in a manner which is unbecoming of a Government Servant;

(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;

(v) if he had acted in order to unduly favour a party;

(vi) if he had been actuated by corrupt motive, however, small the bribe may be because Lord Coke and long ago "though, the bribe may be small, yet the fault is great."

The Court further, observed that the said instances were not exhaustive. However, it was further observed by the Supreme Court that each case would depend upon the facts and circumstances of that case, and no absolute rule can be postulated.

In Union of India v. Upendra Singh, (1994) 3 SCC 357, the Apex Court held that 'even an Officer, while discharging judicial or quasi-judicial duties, is amenable to the disciplinary proceedings into his conduct in discharge of the duty.'

In Union of India and Ors. v. A.N. Saxena, AIR 1992 SC 1233, the Hon'ble Apex Court held that 'disciplinary action can be taken in regard to the action taken or purported to be taken in course of judicial or quasi-judicial proceedings. However, in such circumstances, the disciplinary proceedings should be initiated after great caution and a close scrutiny of his actions and only if the circumstances so warrant for the reason that initiation of disciplinary proceedings against a Judicial Officer may shake the confidence of the public in the Officer concerned and if lightly taken, likely to undermine his independence and in case, the action of Judicial Officer indicates culpability, there is no reason why disciplinary action should not be taken against him.'

In Government of Tamil Nadu v. K.N. Ramamurthy, AIR 1997 SC 3571, the Hon'ble Supreme Court held that exercise of judicial or quasi-judicial power negligently having adverse affect on the party or the State certainly amounts to misconduct.

In M.H. Devendrappa v. Karnataka State Small Industries Development Corporation, AIR 1998 SC 1064, the Hon'ble Supreme Court has ruled that any action of an employee, which is detrimental to the prestige of the institution or employment, would amount to misconduct.

In Union Bank of India v. Vishwa Mohan, (1998) 4 SCC 310, the Hon'ble Supreme Court held that misconduct includes not working with diligence by an employee.

In Government of Andhra Pradesh v. P. Posetty, (2000) 2 SCC 220, the Hon'ble Supreme Court held that sense of propriety and acting in derogation to the prestige of the institution and placing his official position under any kind of embarrassment may amount to misconduct as the same may ultimately lead that the delinquent had behaved in a manner which is unbecoming of an employee/ Government Servant.

It is significant to mention here that there is a vast difference between the judicial service and other government service. The judicial service is not an ordinary Government service and the Judicial Officers are not employees as such. Since dispensation of justice is Godly function, therefore the holder of the office of the Judge should be above the conduct of ordinary mortals of the society. The standards of judicial behaviour, both off and on the Bench are normally high and the conduct that tends to undermine the public confidence in the character, integrity or impartiality of a Judicial Officer, both in his official life and personal life, is simply not acceptable. In this regard, the Hon'ble Apex Court in the case of R. Ravichandran Iyer Vs. Justice A.M. Bhattacharyaji & Others reported in 1995 (5) SCC 457, which has been referred by the Counsel for the respondents, the Apex Court held in paras 21 & 23 as follows: -

"21. Judicial office is essentially a public trust. Society is, therefore, entitled to expect that a Judge must be a man of high integrity, honesty and required to have moral vigour, ethical firmness and impervious to corrupt or venial influences. He is required to keep most exacting standards of propriety in judicial conduct. Any conduct which tends to undermine public confidence in the integrity and impartiality of the court would be deleterious to the efficacy of judicial process. Society, therefore, expects higher standards expected of a higher judicial functionary, as wholesome standard of conduct which would generate public confidence, accord dignity to the judicial office and enhance public image, not only of the Judge but the court itself. It is, therefore, a basic requirement that a Judge‟s official and personal conduct be free from impropriety; the same must be in tune with the highest standard of propriety and probity. The standard of conduct is higher than that expected of a layman and also higher than that expected of an advocate. In fact, even his private life must adhere to high standards of probity and propriety, higher than those deemed acceptable for others. Therefore, the Judge can ill-afford to seek shelter from the fallen standard in the society."

"23. To keep the stream of justice clean and pure, the Judge must be endowed with sterling character, impeccable integrity and upright behaviour. Erosion thereof would undermine the efficacy of the rule of law and the working of the Constitution itself. The Judges of higher echelons, therefore, should not be mere men of clauy with all the frailties and foibles, human failing and weak character which may be found in those in other walks of life. They should be men of fighting faith with touch fibre not susceptible to any pressure, economic, political or of any sort. The actual as well as the apparent independence of judiciary would be transparent only when the office-holders endow those nullifies which would operate as impregnable fortress against surreptitious attempts to undermine the independence of the judiciary. in short, the behaviour of the Judge is the bastion for the people to reap the fruits of the democracy, liberty and justice and the antithesis rocks the bottom of the rule of law."

Similarly in the case of R.C. Chandel Vs. High Court of Madhya Pradesh & Another reported in 2012 (8) SCC 58, the Hon‟ble Apex Court in para 29 held as follows: -

"29. Judicial service is not an ordinary government service and the Judges are not employees as such Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge like Casesar‟s wife must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty."

The Hon‟ble Apex Court in the case of Nawal Singh Vs. State of U.P., reported in 2003 (8) SCC 117, in para 2 while dealing with the case of compulsory retirement of judicial officer emphasized the importance of integrity of a judicial officer and justification of compulsory retirement even in the solitary case of doubtful integrity and held as follows: -

"2. At the outset, it is to be reiterated that the judicial service is not a service in the sense of an employment. Judges are discharging their functions while exercising the sovereign judicial power of the State. Their honesty and integrity is expected to be beyond doubt. It should be reflected in their overall reputation. Further, the nature of judicial service is such that it cannot afford to suffer continuance in service of persons of doubtful integrity or who have lost their utility. If such evaluation is done by the Committee of the High Court Judges and is affirmed in the writ petition, except in very exceptional circumstances, this Court would not interfere with the same, particularly because the order of compulsory retirement is based on the subjective satisfaction of the authority."

As regard the domestic inquiry against a government servant, it is well settled that disciplinary inquiry is not governed by the strict rules of evidence which govern a criminal trial. A charge of misconduct in a disciplinary proceeding has to be established on a preponderance of probabilities. The High Court while exercising its power of judicial review under Article 226 has to determine as to whether the charge of misconduct stands established with reference to some legally acceptable evidence.

It is also well settled that the High Court would not interfere unless the findings are found to be perverse. In other words, unless it is a case of no evidence, the High Court would not exercise its jurisdiction under Article 226. If there is some legal evidence to hold that a charge of misconduct is proved, the sufficiency of the evidence would not fall for re-appreciation or re- evaluation before the High Court.

We would also like to mention that the decision taken by the Administrative Committee/ Full Court, and forming the unanimous opinion about the inflicting major/minor punishment unless being extremely arbitrary or capricious so as to shock the conscience of the Court cannot and should not be interfered with under the exercise of judicial review, unless the Court in some extraordinary case, is convinced that some real injustice has been met, which ought to be corrected. In the case of Rajendra Singh Verma (dead) through LRs & Others Vs. Lt. Governor (NCT of Delhi) reported in 2011 (10) SCC Page 1 and in para 218 of the same, it was held that:-

"218. On a careful consideration of entire material, it must be held that evaluation made by the Committee/Full Court forming their unanimous opinion, is neither so arbitrary nor capricious nor can be said to be so irrational, so as to shock the conscience of this Court to warrant or justify any interference. In cases of such assessment, evaluation and formation of opinions, a vast range of multiple factors play a vital and important role and no one factor should be allowed to be blown out of proportion, either to verify or deify an issue to be resolved or claims sought to be considered or asserted. In the very nature of things, it would be difficult, nearing almost an impossibility, to subject such exercise undertaken by the Full Court to judicial review, except in an extraordinary case, when the Court is convinced that some real injustice, which ought not to have taken place, has really happened and not merely because there could be another possible view or someone has grievance about the exercise undertaken by the Committee/Full Court."

(Emphasis Supplied)

One of the assertions of the petitioner is that there is defect in the inquiry proceedings and it has vitiated the order of removal as despite letters having been written by the petitioner for furnishing copies of certain documents and examination of the witnesses but the request of the petitioner went in vain. This assertion of the petitioner is falsified as there is a letter dated 24.9.1996 of the Inquiry Officer on record which shows that the entire record and all the files have been inspected by the petitioner and the Inquiry Officer has also categorically explained that the five letter demanded by the petitioner vide his letter dated 27.8.1996 are irrelevant to the subject matter of the charge-sheet. There is a letter dated 4.3.1997 of the petitioner on record, which shows that he had received the copy of the preliminary inquiry report. There is another letter of the Inquiry Officer dated 8/9.9.1995 on record which reveals that the Inquiry Officer had served copy of statement of all the witnesses including statement of Smt. Nanda Sharma. Despite having received the statement of witnesses, the petitioner kept on saying that statement of witnesses have not been received.

It is also relevant to mention that the Inquiry Officer in its report had dealt with all the pleas raised by the petitioner. The Inquiry Officer in its report had observed in explicit words that the petitioner had failed to explain as to what prejudice was caused to him by non-supply of a particular document. At another place, the Inquiry Officer says that though from 13.5.1998 to 15.5.1998 the petitioner cross-examined all the remaining 13 witnesses but he deliberately did not cross-examine the three witnesses i.e. Smt. Nanda Sharma, Prayag Dutt Bhadola and B.P.Dodiyal. The charges levelled against the petitioner were found proved by the Inquiry Officer on the basis of evidence adduced by the Inquiry Officer. In paragraph 64 of the report, the statement of Sri Prayag Dutt, husband of Smt. Nanda has been referred whereas in paragraph 71 of the inquiry report, the statement of Smt. Nanda Sharma has been referred wherein she had herself accepted the fact that the petitioner had illicit physical relationship with her. Thus the petitioner had utterly failed to proof the specific defect in the inquiry and the assertions of the petitioner are wholly misconceived and cannot be accepted.

Before proceeding further, we would like to mention that in the writ petition, the petitioner had taken a plea that there was no occasion for the High Court to have withdrawn the inquiry proceedings through an administrative decision of the Administrative Committee and to entrust it to a new Inquiry Officer. In this regard, we would like to mention that the High Court took a decision to alter the Inquiry Officer under a resolution of the Administrative Committee taken in the year 1995 and the same was not assailed by the petitioner in any forum. It may be added that it is not only the petitioner whose inquiry was recalled and entrusted to another Officer but there were ten officers in all whose departmental inquiry was recalled from the Administrative Tribunal. Thus the petitioner had acquiesced and submitted to the jurisdiction of the High Court in the inquiry through a new Inquiry Officer. It is settled law that the plea which is not raised at the first instance cannot be raised at a belated stage and we are unable to accept the assertion treating the inquiry proceedings to have been vitiated. Our above view is fortified by the decision of the Apex Court rendered in the case of Kedar Shashikant Deshpande vs. Bhor Municipal Council; 2011(2) SCC 654, wherein it was held that if a person has submitted to the jurisdiction of the authority, he cannot challenge the proceedings, on the ground of lack of jurisdiction of the said authority in further proceedings.

Having considered the material on record, we are of the view 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 after due application of mind. 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. In these circumstances, we have no hesitation in holding that the inquiry report and consequential resolution of the Full Court and the impugned order of removal are perfectly legal and valid. Moreover, our above view is countenanced by the view expressed in the case of High Court of Judicature at Bombay vs. Shashi Kant S. Patil;(2000) 1 SCC 416, and State of U.P. vs. Sheo Shankar Lal Srivastava;(2006) 1 UPLBEC 985. Therefore, the case laws relied upon by the petitioner, referred to above, are of no avail to him.

Considering the entire material on record, the service record of the petitioner and also the grave misconduct, which has been committed by the petitioner, we find that the petitioner is not a fit person to be retained in service. The order of removal dated 1.2.2000 removing the petitioner from service, cannot be faulted in any manner.

The writ petition is devoid of merit. It is accordingly dismissed.

Costs easy.

Order Date

20th December, 2017 [Rajnish Kumar J.] [ Dr. D.K.Arora,J.]

MH/-