Rakesh Kumar Garg vs Lt.Governor Of Delhi & Anr
2012 Latest Caselaw 5936 Del

          THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 04.10.2012

+        W.P.(C) 441/2007

RAKESH KUMAR GARG                                      ... Petitioner

                                       versus

LT.GOVERNOR OF DELHI & ANR                              ... Respondents

Advocates who appeared in this case:

For the Petitioners : Mr. Sanjeev Sachdev, Senior Advocate with Mr. Rajan Tyagi For the Respondent No.2 : Mr. Rajiv Bansal, Mr. Rahul Bhandari and Ms. Nitisha Kathuria

CORAM:-

HON'BLE MR JUSTICE BADAR DURREZ AHMED HON'BLE MR JUSTICE SIDDHARTH MRIDUL

BADAR DURREZ AHMED, J (ORAL)

1. In this writ petition Mr. Rakesh Garg, Officer of the Delhi Judicial

Services is challenging the order of dismissal from service.

2. The facts are that the petitioner joined the Delhi Judicial Service on 4th

November, 1986 and in the year 2000 he was promoted to the Delhi Higher

Judicial Service. He was posted as ACMM (Patiala House Courts) on 11th

August, 2000 but before he could join, he was transferred to the Labour

Court. On 8th December, 2000, judicial work was withdrawn from the

petitioner and he was asked to do only administrative work. Since some

time had gone by and no inquiry had been initiated, the petitioner made a

representation to the High Court in 2002 requesting for judicial work being

assigned to him. That, of course, did not happen. Instead, the charge memo

dated 12.9.2002 was issued to the petitioner containing five articles of

charge. The same reads as under:-

"ARTICLES OF CHARGE

1. The officer Mr. Rakesh Garg(then a DJS Officer) while working as Metropolitan Magistrate, PS Rajinder Nagar, Kirti Nagar and Subji Mandi between 5.4.1999 to 27.5.2000 maintained contact and remained to touch with various hotels and banquet halls falling within his jurisdiction. Hotels Megha Palace and Megha Sheraton fall within the jurisdiction of PS Rajinder Nagar and Rajesh Bhatia owns them. Mr. Rajesh Bhatia (owner) Mr. Bhagat Ram (Manager) of Megha Sheraton hotel were challaned by the Police under Section 28/112 DP Act vide DD No. 33A dated 1.3.2000. This officer dealt with this case between 1.3.2000 and 27.5.2000. The officer made telephone calls from his cell phone No. 9810056432 on telephone Nos. 5788286 and 5788287 on 12.10.1999 and 22.11.1999 respectively. The officer also made calls from the same cell phone on Phone No. 5788286 twice on 1.1.2000. He also received a call from phone No. 5788286 on his cell phone on 30.1.2000.

The telephonic link establishes a close contact, acquaintance link establishes a close contact, acquaintance and dealings between the officer and the owner of the hotels Megha Palace and Megha Sheraton whose matter related to DD No. 33A/2000 was pending in his court and was also being dealt with by him.

This act amounts to failure on the part of the office to maintain absolute integrity and also shows that the officer acted in a way which is unbecoming of a judicial officer.

2. The officer during his postings as Metropolitan Magistrate PS Rajinder Nagar dealt with and held trial in a case title State Vs. Rajesh Bhatia (the owner of hotels Megha Palace/Megha Sheraton), FIR No. 210/1995, PS Rajinder Nagar under Section 186,353,342,506 IPC. The officer acquitted this accused vide his judgement dated 9.8.1999. The above said conduct of the officer in dealing with a case of an accused with whom he had acquaintance with him amounts of failure on the part of the officer to maintain absolute integrity. Such conduct also amounts to his doing an act which is unbecoming to a judicial officer.

3. Another hotel Bharat Palace fell within the officer's jurisdiction. This hotel was challaned under Section 28/112 by the Police vide DD No. 36B dated 2.3.2000. Mr. Sanjay Uppal is the owner of this hotel. In this matter Kalandara seems to have been filed on 8.3.2000 and though Mr. Sanjay Uppal was not challenged yet, the officer ordered him to be summoned for 15.3.2000. This matter was dealt with by the officer till 27th May, 2000 the date upto which he remained in this court. The office made a phone call from his cell phone No. 9810056432 to phone No. 5735129 (Hotel Bharat Palace) which clearly reflects the close association and, link this officer had with the owner of this hotel. Despite this, he dealt with the Kalandra and proceeded with the trial. This act amounts to failure on the part of the officer to maintain absolute integrity. Such conduct also amounts to his doing an act which is unbecoming of a judicial officer.

4. The officer did contact hotel Bharat Palace telephonically on the above said date i.e. 14.11.1999 and again - handled another case State Vs. Jugal Uppal, FIR No. 79/1999 for offence under Section 506 IPC, PS Rajinder Nagar. This was a

Police case and a report was submitted for cancellation of the same, which this officer accepted and cancelled the said police case vide his order dated 4.6.1999. Mr. Jugal Uppal is the brother of Mr. Sanjay Uppal. This act on the part of the officer amounts to failure of the officer to maintain absolute integrity. Such conduct also amount to his doing an act which is unbecoming of a judicial officer.

5. The officer had regular contacts with other hotel owners in the area-e.g. Hotel Alaska situate in PS Karol Bagh and Hotel Venus situate in the adjoining area of PS Paharganj. Phone calls made from the officer's cell phone No. 9810056432 or received by him on it from the said hotels (No. 5713487- Hotel Alaska and No. 5713488- Hotel Venus), which indicate the close proximity the officer had with the hotel owners. The officer was, in the course of judicial functioning was having before him proceedings relating to such like hotel owners. Maintenance of regular contacts with the hotel owners/management obviously was with oblique interest and purpose and thereby to misuse his official position in the event of an occasion arising for dealing with proceedings, if any, before him, such as, under section 28/122 of the DP Act. This act amounts to failure, on the part of the officer, to maintain absolute integrity. Such conduct also amounts to his doing an act which is unbecoming of judicial officer."

3. The said charge memo was served upon the petitioner after it had been

approved by the Full Court in its meeting of 1.8.2002.

4. Thereafter, an inquiry officer was appointed on 18th January, 2003.

On 19th July, 2003, the Full Court of the High Court allowed the request of

the petitioner for engaging an Advocate to represent him in the disciplinary

proceedings. Thereafter, the Inquiry Officer submitted his report dated 21st

October, 2005. The Inquiry Officer exonerated the petitioner in so far as

Articles Nos. 2 & 4 are concerned. However, he found the other Articles of

Charge as having been proved. The same was accepted by the Full Court in

the meeting held on 19th November, 2005 and in the very same meeting the

Full Court directed that the Inquiry Officer's report be forwarded to the

petitioner and he also be informed that the penalty of dismissal from service

was in contemplation. Subsequently, a memorandum dated 29th November,

2005 was served upon the petitioner requiring him to show cause as to why

the penalty of dismissal from service be not imposed on him. The petitioner

submitted his reply on 13th December, 2005.

5. In the Full Court Meeting held on 20th May, 2006, the reply of the

petitioner was considered and, in view of the gravity of charges, the Full-

Court decided to impose the major penalty of dismissal from service. The

Registry was also directed to send the recommendation to the Lt. Governor,

which was sent by virtue of a memorandum dated 25th May, 2006. The Lt.

Governor issued the order dated 22nd July, 2006 dismissing the petitioner

from service. In the meanwhile, the petitioner had moved a representation

for consideration of the Full Court on 11th July, 2006. However, that

representation came up for consideration before the Full Court on 18th

November, 2006 and was rejected as having become infructuous inasmuch

as the petitioner had, in the meanwhile, been dismissed from service. Being

aggrieved by this, the petitioner has filed the present writ petition.

6. The learned counsel for the petitioner, first of all, submitted that this

was a case of no evidence inasmuch as the Presenting Officer did not lead

any evidence and the entire case has been build up on the basis of certain

"telephone calls". Secondly, the learned counsel submitted that the Inquiry

Officer's report is based entirely on surmises and conjectures. Thirdly, it

was submitted that the Inquiry Officer's report would also be bad inasmuch

as the Inquiry Officer during the disciplinary proceedings had placed the

onus on the charged officer to disprove the case against him. Fourthly, the

learned counsel for the petitioner submitted that prior to the inquiry, the

petitioner was not informed that the inquiry was with regard to a major

penalty. Fifthly, the learned counsel for the petitioner submitted that the

penalty of dismissal from service was disproportionate, particularly, in view

of the fact that the Inquiry Officer had exonerated the petitioner in so far as

Articles 2&4 of the charge memo were concerned. Sixthly, it was contended

that the inquiry was on the basis of an anonymous complaint and till date

nobody knows as to who the complainant was. Finally, it was contended by

the learned counsel for the petitioner that a personal hearing was not granted

to the petitioner by the Full Court and, as such, according to him, there was a

violation of the principles of natural justice.

7. In response, the learned counsel for the respondent placed before us

the decision of the Supreme Court in the case of Registrar General, Patna

High Court v. Pandey Gajendra Prasad & Ors.: 2012 (5) SCALE 404 =

AIR 2012 SC 2319. He submitted that in view of the observations of the

Supreme Court in the case of Pandey Gajendra Prasad (supra), nothing

survives in the present writ petition.

8. The Supreme Court in Pandey Gajendra Prasad (supra) observed as

under:-

"14. Elaborating on the scope of judicial review of an Assessment of the conduct of a judicial officer by a Committee, approved by the Full Court, in Syed T.A. Naqshbandi and Ors. v. State of Jammu & Kashmir and Ors.1 this Court noted as follows:

"As has often been reiterated by this Court, judicial review is permissible only to the extent of finding whether the process in reaching the decision has been observed correctly and not the decision itself, as such. Critical or independent analysis or appraisal of the materials by the Courts exercising powers of judicial review unlike the case of an appellate Court, would neither be permissible nor conducive to the interests of either

2003 (9) SCC 592

the officers concerned or the system and institutions of administration of justice with which we are concerned in this case, by going into the correctness as such of ACRs or the Assessment made by the Committee and approval accorded by the Full Court of the High Court."

15. In Rajendra Singh Verma (Dead) Through L.Rs. and Ors. v. Lieutenant Governor (NCT of Delhi) and Ors.2 reiterating the principle laid down in Shashikant S. Patil and Anr.3, this Court observed as follows:

"In case where the Full Court of the High Court recommends compulsory retirement of an officer, the High Court on the judicial side has to exercise great caution and circumspection in setting aside that order because it is a complement of all the Judges of the High Court who go into the question and it is possible that in all cases evidence would not be forthcoming about integrity doubtful of a judicial officer.

It was further observed that:

"If that authority bona fide forms an opinion that the integrity of a particular officer is doubtful, the correctness of that opinion cannot be challenged before Courts. When such a constitutional function is exercised on the administrative side of the High Court, any judicial review thereon should be made only with great care and circumspection and it must be confined strictly to the parameters set by this Court in several reported decisions. When the appropriate authority forms bona fide opinion that compulsory retirement of a judicial officer is in

Civil Appeal No. 7781/2011 dated 12/09/2011

2000 (1) SCC 416

public interest, the writ Court under Article 226 or this Court under Article 32 would not interfere with the order."

9. Thereafter, the Supreme Court in the context of the factual situation

arising in the case before it observed that there was nothing on the record to

even remotely suggest that the violation made firstly by the standing

committee and then by the Full Court was "so arbitrary, capricious or

irrational so as to shock the conscience" of the Division Bench to justify its

interference with the unanimity of the Full Court.

10. The Supreme Court then observed that in the very nature of such

things, it would be difficult, rather almost impossible, to subject such an

exercise undertaken by the Full Court, to judicial review, save and except in

an extra-ordinary case when the court is convinced that some exceptional

thing which ought not to have taken place has really happened and not

merely because there could be another possible view or there is some

grievance with the exercise undertaken by the Committee/Full Court.

11. Finally, the Supreme Court held as under:-

"17. Having regard to the material on record, it cannot be said that the evaluation of the conduct of the first respondent by the Standing Committee and the Full Court was so arbitrary, capricious or irrational that it warranted interference by the Division Bench. Thus, the inevitable conclusion is that the

Division Bench clearly exceeded its jurisdiction by interfering with the decision of the Full Court."

(underlining added)

12. From the above observations of the Supreme Court, it is apparent that

judicial review of a Full Court decision is not to be entertained until and

unless the Full Court decision is regarded as being so arbitrary, capricious or

irrational as to shock the conscience of the Court. It is only in this limited

sphere that judicial review is permissible when the matter has been

considered by the Full Court on the administrative side.

13. Faced with this decision, the learned counsel for the petitioner fairly

stated that he cannot pitch his case so high. As such, there is no reason for us

to interfere with the decision of the Full Court recommending to the Lt.

Governor the imposition of the major penalty of dismissal from service, in so

far as the petitioner is concerned.

14. The writ petition is dismissed. There shall be no order as to costs.

BADAR DURREZ AHMED, J

SIDDHARTH MRIDUL, J OCTOBER 04, 2012 rs