Delhi High Court
Akshay Bipin vs Union Of India on 25 September, 2018
$~71
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 25th September, 2018
+ W.P.(C) 4616/2018 & CM No.17827/2018
AKSHAY BIPIN ..... Petitioner
Through: Mr. Sanjeev Bhandari, Adv.
versus
UNION OF INDIA ..... Respondent
Through: Mr. Anil Soni, CGSC
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
J U D G M E N T (ORAL)
1. "...I will duly and faithfully and to the best of my ability,
knowledge, and judgment perform the duties of my office without fear or
favor, affection or ill-will ..." These words, infused with solemn intensity
and pregnant with meaning, serve to guide every judicial officer, in our
judicial hierarchy, and permeate every living millisecond of the career of
the officer, and the discharge, by her, or him, of the sacred duty so
solemnly entrusted to him by the Constitution, carrying with it the
expectations and aspirations of the founding fathers of our land, and the
fond hopes of the voiceless millions of the country.
2. The task of the judicial officer is arduous, and unenviable. It is a
constant struggle, the pressure of which the bystander watching from the
sidelines can never gauge, to ensure that, in dispensing justice, he does
not end up dispensing with justice. No less perilously would the shaking
hand of the judge hold the justice-dispensing pen, than would the shaking
hand of the surgeon wield the life-infusing scalpel. No less disastrous,
either, would the outcome be, if, at the critical moment of pronouncing
the verdict, or making the crucial incision, the decision-making mind
were to waver, or the hand to tremble.
3. I am constrained to observe that, if proceedings such as these are
allowed to be initiated and continued, we may as well do away with the
requirement of dispensing justice without fear or favour, affection or ill
will. It is cardinal, to the dispassionate administration of justice, that the
judicial officer should be allowed to function without having, over his
head as it were, the ominous shadow of the Damoclean sword. This case
presents a classic example of how a judicial officer has been hounded for
passing orders which, as the writ petition points out, and as I would also
be highlighting in the course of this judgment, are eminently in
accordance with the law laid down by this court, in its decisions, in case
after case.
4. It is trite, in law, that a writ court should, ordinarily, not interdict
disciplinary proceedings at an interlocutory stage. This, however, is not
an ordinary case. So misconceived, indeed, are the proceedings that have
been initiated against the petitioner, that this court has no option but to
nip them in the bud, by exercising its extraordinary jurisdiction, vested by
Article 226 of the Constitution of India.
5. To reonnoitre, now, the facts.
6. The petitioner was appointed as Presiding Officer of the Debt
Recovery Tribunal (hereinafter referred to as "DRT"), Chandigarh, on
15th December, 2014. His tenure, as Presiding Officer, came to an end on
24th May, 2008.
7. The present writ petition emanates from suo moto proceedings,
initiated against the petitioner by the Chairman of the Debt Recovery
Tribunal (hereinafter referred to as "the DRAT"), on the basis, allegedly,
of a written complaint by an advocate. The complaint, apparently,
related to two applications, filed by the Punjab National Bank (hereinafter
referred to as "PNB"), against two firms, namely M/s Barkat Ram Jeevan
Kumar (hereinafter referred to as "Barkat") and M/s Jeevan Petroleum
(hereinafter referred to as "Jeevan").
8. The case against Barkat arose out of a recovery suit, filed by the
New Bank of India, against Barkat on 28th August, 1990 for recovery of ₹
4,24,440/-. The suit was decreed by the Civil Court on 5th September,
1997. Based thereon, the Bank filed an execution application, before the
DRT, on 11th February, 2009. The Presenting Officer issued a recovery
certificate, i.e. RC No. 266/2006, for a sum of ₹ 1,854,831/-, with interest
at the rate of 16.5% per annum, with effect from 7 th November, 2000,
alongwith a sum of ₹ 45,078.22 and alongwith interest @ 18.5% per
annum with effect from 7th November, 2000, in respect of the Overdue
Bill Purchased Facility.
9. The case against Jeevan arose out of a recovery suit, filed by the
Bank on 22nd January, 2000, for recovery of ₹668,170/- which was
decreed by the Civil Court on 2nd June, 2008. Based on the said judgment
and decree, Execution Application was filed, by the Bank, before the
DRT on 13th March, 2009, whereupon Recovery Certificate RC No.
118/2012 was issued, for recovery of ₹ 23,02,215/- with interest at the
rate of 15% per annum with effect from 16th March, 2009, alongwith
costs of ₹ 250/-.
10. During the pendency of these recovery proceedings, the third party
objector tendered a compromise proposal to the PNB, in respect of both
the recovery certificates, , for a sum of ₹ 20 lakhs, for release of property
and closure of the cases. This resulted in an affidavit, dated 15 th July,
2016, being filed by the PNB before the DRT, in which it was stated that
the Bank had compromised the matter as per rules. It was prayed that the
compromise amount be allowed to be adjusted and the RC taken as
satisfied.
11. Initially, the Recovery Officer ordered that the compromise be not
given effect to, as the compromise amount, according to him, was too
low. However, as was admitted by the Bank, in its affidavit filed before
the petitioner, "after the Bank attempted, twice, to auction the property,
but was unable to secure any bid, the Bank itself applied for permission
to act upon the compromise, stating that it had been entered into
according to banking norms."
12. In these circumstances, the petitioner, as PO of the DRT,
confirmed the settlement/compromise and quashed the proceedings
before the recovery officer. Accordingly, vide separate order of the same
date, the appeal of the debtors was also allowed. The affidavits, filed by
the Bank, in the present suo moto proceedings initiated by the Chairman,
according to the petitioner, made it clear that the recovery policy of the
Bank had been duly followed in sanctioning the one time settlement
(„OTS‟) and that approval to the OTS had also been accorded by the
Circle Officer of the Bank. The affidavits also confirmed deposit, of the
settlement amount of ₹ 20 lakhs, in terms of the settlement, and
categorically deposed that it stood by the OTS. The petitioner impresses,
in the writ petition, that the affidavits expressly record the satisfaction, of
the Bank, to the closure of the RCs by the petitioner. These facts are not
disputed.
13. It appears that, thereafter, an advocate submitted a complaint,
against the closure of the above proceedings by the petitioner, to the
Chairman of the DRAT, who took suo motu cognizance thereof. It is not
necessary to refer to the specifics of the enquiry conducted by the
Chairman. Suffice it to note that, in the order, dated 6th February, 2017,
the Chairman also observed that there was no reason to "smell a rat in
the passing of the orders dated 15.07.2017 by the Presiding Officer of the
DRT-II, even though the order was set aside". The comments in the said
order, it was stated, had to be taken by the Presiding Officer as a "piece
of guidance also for future that he should not pass orders in haste".
14. Less than two months prior to the expiry of his tenure, the
petitioner was issued a charge-sheet dated 23rd March, 2018. The charge-
sheet related to the order dated 15th July, 2016, passed by the petitioner,
confirming the compromise of ₹ 20 lakhs entered into, between the PNB
and the two borrower firms, i.e. Barkat and Jeevan. It was observed, in
the charge-sheet, that the orders had been passed by the petitioner in a
disposed of OA 117/2009 which had the effect of withdrawal of the two
RCs. The total value of the two RCs, it was noted was ₹ 2,37,55,771/-,
which was substantially higher than the compromise amount of ₹ 20
lakhs. The Statement of Imputations attached to the charge-sheet also
noted that the payment of the loan, taken by the two borrowers from the
Bank, was secured by way of mortgage of a piece of land, with a building
constructed thereon, and that the mortgaged property was to be auctioned
and the reserve price fixed at ₹ 3.34 crores. It was further noted that
proclamation of sale had been issued on 24th July, 2015, by the Recovery
Officer for the said RCs, requiring deposit of the earnest money of ₹ 85
lakhs, by the intending bidder. As such, the charge-sheet alleged that the
orders, withdrawing the Recovery Certificates, were passed by the
petitioner, on 15th July, 2016, unauthorizedly, without legal authority or
justification. This, it was alleged, amounted to exceeding, by the
petitioner, of his "vested judicial powers, showing his incapacity to
function as a Presiding Officer in a befitting manner" and that he was
"guilty of misbehaviour".
15. It is necessary, here, to reproduce certain passages of the affidavits,
submitted by the Bank, at the time of applying for closure of the
proceedings on the ground that they had been compromised, as also
before the Chairman of the DRAT, in the suo motu proceedings initiated
by him, thus:
"14. I say that the third party objector tendered
compromise proposal in R.C. No.118/2012 and R.C.No.
266/2006 of ₹20 lakhs for release of the aforesaid property
and closure of the aforesaid cases.
15. I say that the relevant point of time, Mr. S.L.
Agarwal, Assistant General Manager (Retd.) was the
branch incumbent and he was competent to take a decision
on the compromise proposal, which was before the
committee consisting of Mr. S.L. Agarwal, Assistant
General Manager (Retd.), Mr. Nika Ram, Senior Manager
(Loan Incharge) (Retd.) and Mr. Manmohan Singh, Chief
Manager (second man of branch) (Retd.).
16. I say that considering the insurmountable difficulty
in auctioning the aforesaid property for recovery of dues
and the loans having been covered with appropriate
provisioning, it was felt appropriate to accept the
compromise proposal and close the recovery cases in
R.C.No. 118/2012 and R.C.No. 266/2006. Accordingly,
the bank sanctioned the OTS dated 25.11.2014 for ₹20
lakhs which amount was to be deposited by Mr. Balkar
Singh. Mr. Balkar Singh deposited the settlement amount
within the prescribed period.
17. I say that the bank‟s recovery policy has been duly
followed in sanctioning the OTS. The Circle Office of the
bank, also accorded its approval to the OTS dated
25.11.2014.
18. I say that while arriving at the aforesaid settlement,
no portion of the principal amount has been waived. The
entire principal amount disbursed by New Bank of India
under the loan facilities stands recovered. The bank,
however, sacrificed interest as awarded under the
decrees/recovery certificates as it felt that the aforesaid
property will not ever be successfully auctioned.
19. I say that the OTS dated 25.11.2014 is valid and in
accordance with law. The bank stands by the OTS dated
25.11.2014.
20. I say that the learned Tribunal has rightly closed
recovery cases in R.C.No.118/2012 and 266/2006
respectively.
21. I say that the affidavit dated 07.12.2016 of Mr.
Balbir Singh, Senior Manager contains correct
depositions, which I reiterate and reaffirm to be true."
16. The petitioner responded to the charge-sheet, vide communication
dated 13th April, 2018, completely denying the charges, framed against
him.
17. At this stage, reference may be made to Sections 19(22), 26 and 33
of the Recovery of Debts Due to Banks and Financial Institutions Act,
1993 (hereinafter referred to as the "Act"), thus:
"19. Application to the Tribunal. -
(22) The Presiding Officer shall issue a certificate under
his signature on the basis of the order of the Tribunal to
the Recovery Officer for recovery of the amount of debt
specified in the certificate."
"26. Validity of certificate an amendment thereof. -
(1) It shall not be open to the defendant to dispute before the
Recovery Officer the correctness of the amount specified in the
certificate, and no objection to the certificate on any other ground
shall also be entertained by the Recovery Officer.
(2) Notwithstanding the issue of a certificate to a Recovery
Officer, the Presiding Officer shall have power to withdraw the
certificate or correct any clerical or arithmetical mistake in the
certificate by sending intimation to the Recovery Officer.
(3) The Presiding Officer shall intimate to the Recovery
Officer any order withdrawing or canceling a certificate or any
correction made by him under sub-section (2)."
"33. Protection of action taken in good faith
No suit, prosecution or other legal proceeding shall lie against the
Central Government or against 11[the Presiding Officer of a
Tribunal or the Chairperson of an Appellate Tribunal] or against
the Recovery Officer for anything which is in good faith done or
intended to be done in pursuance of this Act or any rule or order
made thereunder."
17. A reading of the above provisions makes it apparent that Section
19(22) of the Act empowers the Presenting Officer of the DRT to issue a
certificate, on the basis of the order of the DRT, to the Recovery Officer,
for recovery of the amount of debt specified in the certificate. At the
same time, Section 26(2) empowers the Presenting Officer to withdraw
the said certificate, by sending intimation to the Recovery Officer.
Section 33 protects actions taken by the Presenting Officer, or the
Chairperson of the DRT/DRAT or the Recovery Officer, for anything
done in good faith, from suits, prosecutions, or other legal proceedings.
It can hardly be disputed that the present disciplinary proceedings, which
the petitioner is facing, would also be eligible to be classified as "other
legal proceedings".
18. As this apparent from the passages, in the affidavits tendered by
the Bank, it was acknowledged, therein, by the Bank, that (i) "the third
party objector had tendered the compromise proposal, in the two RCs of
Rs.20 lakhs, for release of the property and closure of the cases", (ii)
"considering the insurmountable difficulty in auctioning the aforesaid
property for recovery of the dues and loans", it was felt appropriate to
accept the compromise proposal, and close the recovery cases in the two
RCs, (iii) accordingly, the Bank sanctioned the OTS dated 25 th
November, 2014 for ₹ 20 lakhs, which amount was deposited by Mr.
Balkar Singh, within the prescribed period, (iv) in sanctioning the OTS,
the Recovery policy of the Bank had been duly followed and approval, of
the Circle Officer of the Bank also accorded on 25th November, 2014, (v)
the OTS, dated 25th November, 2014, was valid and in accordance with
law, and the Bank stood by it and (vi) the DRT had rightly closed the two
RCs.
19. The petitioner has, in these circumstances, moved this court, for
interdicting the continuance of the disciplinary proceedings against him.
It is the contention of the petitioner that, where a compromise is entered
into, between litigating parties, it is a contract between them, and a court
has only to see that the same is lawful. Reliance has been placed, by the
petitioner, in this context, on a judgment dated 19 th April, 2010, of this
court in Satish Chander Gupta v. S.B.I. (WP(C) 2588/2010). To the
same effect is para 9 of a recent decision of this court in Smt. Harpreet
Kaur & Anr. v. M/s Fullerton India Creditcompany Ltd., 2018 (249)
DLT 283. The said passages may profitably be reproduced, thus:
"9. Even otherwise, as observed by a Division Bench
of this Court in the said order dated 19.4.2010, extracted
hereinabove, the parties to a proceedings are at a liberty;
at any stage thereof, to arrive at an amicable settlement in
relation to the subject matter of the dispute, and it does not
lie in the mouth of the judicial authority to obstruct or
impede the amicable settlement on a ground which is not
sustainable in law. The learned DRAT, as observed in the
said order dated 19.4.2010, is not some kind of
Ombudsman/Auditor of the Bank; to scrutinize the
settlement arrived at between the bank and the borrower,
as it is not within the scope and ambit of its jurisdiction or
function. It is reiterated that the learned DRAT cannot
arrogate to itself the power to determine the value at
which the Bank should settle its dues with the borrower,
especially when it does not any involve public money."
20. The petitioner also draws attention to the fact that the order, dated
15th July, 2016 had been passed by him, based on an affidavit, of the
same date, filed by the Bank, specifically averring that the RCs be taken
as satisfied.
21. The writ petition further points out that there is no allegation of
want of good faith, moral turpitude, or corruption, against the petitioner.
22. By way of a residuary submission, the writ petition avers that the
proceedings against the petitioner, having been founded on the
report/order dated 6th February, 2017 of the Chairman, DRAT, the
procedure prescribed in Section 4 of the Act was required to be followed
which, too, was not done. However, in the light of the view which I am
taking, it may not be necessary to enter into this aspect of the matter.
23. The counter-affidavit filed by the respondent in response to the
writ petition does not contain any substantial rebuttal to the averments in
the writ petition, except for reiterating the trite position that courts
ordinarily ought not to interdict disciplinary proceedings midway.
Mr.Soni, learned counsel appearing for the respondent, too, limited his
submission to emphasising this legal position and relied, in this context,
on the well known judgment of the Supreme Court in UOI v. Kunisetty
Satyanarayana, (2006) 12 SCC 28.
24. There can be no quarrel with the proposition that disciplinary
proceedings, once commenced, ought to be allowed to proceed to their
logical conclusion, at the hands of the disciplinary authority and, if so
provided in law, further at the hands of the appellate and revisional
authorities. The Supreme Court has, on numerous occasions, highlighted
the indisability of courts interfering with disciplinary proceedings
midway. As such, there can be no cavil with the proposition mooted by
Mr. Soni, or the law relied upon, by him, in that regard.
25. At the same time, it is equally trite that, if the allegations against
the officer concerned, even at their face value, do not disclose
commission of any misconduct, it is the solemn duty of every
constitutional court to step in and ensure that the officer is not
unnecessarily harassed and subjected to the ignominy of a disciplinary
enquiry, which has pernicious ramifications, financial, personal and
social.
26. The boundaries of permissible disciplinary action, against officers
exercising judicial or quasi judicial powers, have been examined, and
delineated, in a number of decisions.
27. In Zunjarrao Bhikaji Nagarkar v. U.O.I., (1999) 7 SCC 409, the
Supreme Court, dealing with the said aspect observed as follows :
"40. When we talk of negligence in a quasi-judicial
adjudication, it is not negligence perceived as carelessness,
inadvertence or omission but as culpable negligence. This is how
this Court in State of Punjab v. Ex-Constable Ram Singh,
(1992) 4 SCC 54 interpreted "misconduct" not coming within the
purview of mere error in judgment, carelessness or negligence in
performance of duty. In the case of K.K. Dhawan, (1993) 2 SCC
56 the allegation was of conferring undue favour upon the
assessees. It was not a case of negligence as such. In Upendra
Singh case, (1994) 3 SCC 357 the charge was that he gave illegal
and improper directions to the assessing officer in order to
unduly favour the assessee. The case of K.S. Swaminathan,
(1996) 11 SCC 498 was not where the respondent was acting in
any quasi-judicial capacity. This Court said that at the stage of
framing of the charge the statement of facts and the charge-sheet
supplied are required to be looked into by the court to see
whether they support the charge of the alleged misconduct.
In M.S. Bindra case, (1998) 7 SCC 310 where the appellant was
compulsorily retired this Court said that judicial scrutiny of an
order imposing premature compulsory retirement is permissible
if the order is arbitrary or mala fide or based on no evidence.
Again in the case of Madan Mohan Choudhary, (1999) 3 SCC
396 which was also a case of compulsory retirement this Court
said that there should exist material on record to reasonably form
an opinion that compulsory retirement of the officer was in
public interest. In K.N. Ramamurthy case, (1997) 7 SCC 101 it
was certainly a case of culpable negligence. One of the charges
was that the officer had failed to safeguard government revenue.
In Hindustan Steel Ltd. Case (1969) 2 SCC 627 it was said that
where proceedings are quasi-judicial penalty will not ordinarily
be imposed unless the party charged had acted deliberately in
defiance of law or was guilty of conduct contumacious or
dishonest or acted in conscious disregard of its obligation. This
Court has said that the penalty will not also be imposed merely
because it is lawful so to do. In the present case, it is not that the
appellant did not impose penalty because of any negligence on
his part but he said it was not a case of imposition of penalty. We
are, however, of the view that in a case like this which was being
adjudicated upon by the appellant imposition of penalty was
imperative. But then, there is nothing wrong or improper on the
part of the appellant to form an opinion that imposition of penalty
was not mandatory. We have noticed that the Patna High Court
while interpreting Section 325 IPC held that imposition of
penalty was not mandatory which again we have said is not a
correct view to take. A wrong interpretation of law cannot be a
ground for misconduct. Of course it is a different matter
altogether if it is deliberate and actuated by mala fides.
41. When penalty is not levied, the assessee certainly benefits.
But it cannot be said that by not levying the penalty the officer
has favoured the assessee or shown undue favour to him. There
has to be some basis for the disciplinary authority to reach such a
conclusion even prima facie. The record in the present case does
not show if the disciplinary authority had any information within
its possession from where it could form an opinion that the
appellant showed "favour" to the assessee by not imposing the
penalty. He may have wrongly exercised his jurisdiction. But that
wrong can be corrected in appeal. That cannot always form a
basis for initiating disciplinary proceedings against an officer
while he is acting as a quasi-judicial authority. It must be kept in
mind that being a quasi-judicial authority, he is always subject to
judicial supervision in appeal.
42. 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 matter. There must exist
reasonable basis for the disciplinary authority to proceed against
the delinquent officer. Merely because penalty was not imposed
and the Board in the exercise of its power directed filing of
appeal against that order in the Appellate Tribunal could not be
enough to proceed against the appellant. There is no other
instance to show that in similar case the appellant invariably
imposed penalty.
43. If every error of law were to constitute a charge of
misconduct, it would impinge upon the independent functioning
of quasi-judicial officers like the appellant. Since in sum and
substance misconduct is sought to be inferred by the appellant
having committed an error of law, the charge-sheet on the face of
it does not proceed on any legal premise rendering it liable to be
quashed. In other words, to maintain any charge-sheet against a
quasi-judicial authority something more has to be alleged than a
mere mistake of law, e.g., in the nature of some extraneous
consideration influencing the quasi-judicial order. 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."
(Emphasis supplied)
28. After Nagarkar, a similar controversy arose before the Supreme
Court in the case of U.O.I. v. Duli Chand, (2006) 5 SCC 680, which
overruled Nagarkar, by placing reliance on U.O.I. v. K. K. Dhawan,
(1993) 2 SCC 56. Paras 5 and 6 of the report, which relied on K. K.
Dhawan (supra), held thus:
"5. The law on the subject was considered in extenso in the
three-Judge Bench decision of Union of India v. K.K. Dhawan,
(1993) 2 SCC 56 wherein it was noted that the view that no
disciplinary action could be initiated against an officer in respect
of judicial or quasi-judicial functions was wrong. It was further
said that the officer who exercises judicial or quasi-judicial
powers acting negligently or recklessly could be proceeded
against by way of disciplinary action. The Court listed six
instances when such action could be taken: (SCC p. 67, para 28)
"(i) where the officer had acted in a manner as would
reflect on his reputation for integrity or good faith or
devotion to 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 said long ago
„though the bribe may be small, yet the fault is great‟."
6. The Court, however, made it clear that ultimately the
matter would have to depend upon the facts of a particular case.
The present case would fall squarely within the fourth instance
listed above."
(Emphasis supplied)
29. Subsequently, however, another bench, of three Hon‟ble judges,
reiterated Nagarkar (supra), in Ramesh Chander Singh v. High Court
of Allahabad, (2007) 4 SCC 247. The following passages, from the said
judgment, crystallize the legal position:
"11. We fail to understand as to how the High Court arrived at
a decision to initiate disciplinary proceedings solely based on the
complaint, the contents of which were not believed to be true by
the High Court. If the High Court were to initiate disciplinary
proceedings based on a judicial order, there should have been
strong grounds to suspect officer's bona fides and the order itself
should have been actuated by malice, bias or illegality. The
appellant officer was well within his right to grant bail to the
accused in discharge of his judicial functions. Unlike provisions
for granting bail in the TADA Act or the NDPS Act, there was
no statutory bar in granting bail to the accused in this case. A
Sessions Judge was competent to grant bail and if any
disciplinary proceedings are initiated against the officer for
passing such an order, it would adversely affect the morale of
subordinate judiciary and no officer would be able to exercise
this power freely and independently.
12. This Court on several occasions has disapproved the
practice of initiation of disciplinary proceedings against officers
of the subordinate judiciary merely because the judgments/orders
passed by them are wrong. The appellate and revisional courts
have been established and given powers to set aside such orders.
The higher courts after hearing the appeal may modify or set
aside erroneous judgments of the lower courts. While taking
disciplinary action based on judicial orders, the High Court must
take extra care and caution.
13. In Ishwar Chand Jain v. High Court of P&H, (1988) 3
SCC 370, this Court observed that while exercising control over
subordinate judiciary under Article 235 of the Constitution, the
High Court is under a constitutional obligation to guide and
protect subordinate judicial officers. An honest and strict judicial
officer is likely to have adversaries. If complaints are entertained
in trifling matters and if the High Court encourages anonymous
complaints, no judicial officer would feel secure and it would be
difficult for him to discharge his duties in an honest and
independent manner. It is imperative that the High Court should
take steps to protect honest judicial officers by ignoring ill-
conceived or motivated complaints made by unscrupulous
lawyers and litigants.
14. In K.P. Tiwari v. State of M.P., 1994 Supp (1) SCC 540
where the High Court reversed the order passed by the lower
court making remarks about interestedness and motive of the
lower court in passing the unmerited order, this Court observed
that one of the functions of the higher court is either to modify or
set aside erroneous orders passed by the lower courts. Our legal
system acknowledges fallibility of judges. It has to be kept in
mind that a subordinate judicial officer works mostly in a
charged atmosphere. He is under a psychological pressure--
contestants and lawyers breathing down his neck. He does not
enjoy the detached atmosphere of the higher court. Every error,
however gross it may be, should not be attributed to improper
motives. The Judges of the High Court have a responsibility to
ensure judicial discipline and respect for the judiciary from all
concerned. No greater damage can be done to the administration
of justice and to the confidence of the people in the judiciary if
the higher courts express lack of faith in the subordinate
judiciary for some reason or the other. That amounts to
destruction of judiciary from within.
15. In Kashi Nath Roy v. State of Bihar, (1996) 4 SCC 539,
this Court observed under a similar circumstance that in our
system appellate and revisional courts have been set up with the
presupposition that the lower courts in some measure of cases
can go wrong in decision-making in law and in fact. The higher
courts have been established to correct errors. In cases where
intolerable error is pointed out, it is functionally required to
correct the error in an appropriate case and in a manner befitting
maintaining dignity of the court and independence of the
judiciary. The higher court should convey its message in the
judgment to the officer concerned through a process of
reasoning, essentially persuasive, reasonable, mellowed but clear
and result oriented and rarely a rebuke.
16. In a series of other cases also, this Court disfavoured the
practice of passing strictures or orders against the subordinate
officers. (See Braj Kishore Thakur v. Union of India, (1997) 4
SCC 65; Alok Kumar Roy v. Dr. S.N. Sarma, AIR 1968 SC
453.)
17. In Zunjarrao Bhikaji Nagarkar v. Union of India, (1999)
7 SCC 409 this Court held that wrong exercise of jurisdiction by
a quasi-judicial authority or mistake of law or wrong
interpretation of law cannot be the basis for initiating
disciplinary proceeding. Of course, if the judicial officer
conducted in a manner as would reflect on his reputation or
integrity or good faith or there is a prima facie material to show
recklessness or misconduct in discharge of his duties or he had
acted in a manner to unduly favour a party or had passed an
order actuated by corrupt motive, the High Court by virtue of its
power under Article 235 of the Constitution may exercise its
supervisory jurisdiction. Nevertheless, under such circumstances
it should be kept in mind that the Judges at all levels have to
administer justice without fear or favour. Fearlessness and
maintenance of judicial independence are very essential for an
efficacious judicial system. Making adverse comments against
subordinate judicial officers and subjecting them to severe
disciplinary proceedings would ultimately harm the judicial
system at the grassroot level."
(Emphasis supplied)
30. It is relevant to note that, though it did not specifically deal with
the case of an allegedly delinquent quasi-judicial or judicial officer,
another Bench of the Supreme Court, albeit of two Hon‟ble judges,
categorically approved Nagarkar (supra), in Inspector Prem Chand v.
Govt of N.C.T. of Delhi, (2007) 4 SCC 566.
31. All these decisions were noted and considered, by a Division
Bench of this Court, in U.O.I. v. S. Rajguru, MANU/DE/1941/2014.
The Articles of Charge, against the allegedly delinquent respondent in
that case, read thus:
"ARTICLE-I
Shri S. Rajguru, while functioning as Commissioner of Income
Tax (Appeals)-II, Kochi, committed irregularity in the appeal
order passed by him on 01.09.2005 in the case of M/s.
Bhageeratha Engineering Ltd. (Block Period 01.04.1996 to
09.10.2002) by deleting additions which had been made by the
assessing officer without proper verification of the facts and
examination of records.
By his aforesaid act, Shri S. Rajguru failed to maintain devotion
to duty and thereby contravened the provisions of Rule 3(1)(ii) of
the CSS (Conduct) Rules, 1964.
ARTICLE-II
Shri S. Rajguru, while functioning as Commissioner of Income
Tax (Appeals)-II, Kochi committed irregularity in the appeal
order passed by him on 25.08.2005 in the case of M/s. Skyline
Builders (AY 2002-03) by allowing the assessee's appeal in
disregard of the provisions of section 145(3) of the I.T. Act, 1961.
By his aforesaid act, Shri S. Rajguru failed to maintain devotion
to duty and thereby contravened the provisions of Rule 3(1)(ii) of
the CCS (Conduct) Rules, 1964.
ARTICLE-III
Shri S. Rajguru, while functioning as Commissioner of Income
Tax (Appeals)-II, Kochi committed irregularity in the appeal
order passed by him on 23.08.2005 in the case of Shri M.M.
Rasheed (Block Period- 01.04.1989 to 17.09.1998) by deleting
additions which had been made by the assessing officer without
proper verification of the facts and examination of records.
By his aforesaid act, Shri S. Rajguru failed to maintain devotion
to duty and thereby contravened the provisions of Rule 3(1)(ii) of
the CCS (Conduct) Rules, 1964.
ARTICLE-IV
Shri S. Rajguru, while functioning as Commissioner of Income
Tax (Appeals)-II, Kochi committed irregularity in the appeal
order passed by him on 01.09.2005 in the case of Shri Jose
Cyriac (Block Period- 01.04.1989 to 23.09.1998) by allowing the
assessee's appeal in disregard of the directions given by the
Income Tax Appellate Tribunal (ITAT) in its order dtd.
30.07.2003.
By his aforesaid act, Shri S. Rajguru failed to maintain devotion
to duty and thereby contravened the provisions of Rule 3(1)(ii) of
the CCS (Conduct) Rules, 1964."
(Emphasis supplied)
32. This Court, having noticed the above, framed the question arising
before it, for its consideration, as "whether in the facts of the present case,
the Tribunal had erred in holding that the Articles of Charge were not
sustainable since they were based on quasi-judicial orders passed by the
respondent in his capacity as CIT (Appeals)".
33. Holding, ultimately, in favour of the respondent-officer before it,
this Court proceeded on the following reasoning:
"25. It can be seen from the above that the gravamen of the
charges levelled against the respondent are not based on his
conduct. Although it has been alleged that certain decisions
rendered indicate a lack of devotion to duty, but a bare perusal
of the statement of imputation and the Articles of Charge indicate
that the gravamen of the charges is only that the respondent had
rendered decisions which, according to the Revenue, were
erroneous. This is certainly not the basis on which the
proceedings for misconduct can be commenced against a officer
who is charged with a quasi-judicial function. In K.K. Dhawan's
case (supra) there was a specific allegation that the Officer had
completed the assessment "apparently with a view to confer to
undue favour upon the assessee's concern". The test laid down by
the Supreme Court in that case must be read in the context of the
facts placed before the Court. Although, the Court had held that
where an officer had acted in a manner which would reflect upon
his reputation for integrity or good faith or devotion to duty, a
disciplinary action could be initiated. However, an act of an
Officer which would reflect on his devotion to duty must be read
in the context of his conduct and not the correctness of the
decisions rendered by him in a multi-tiered appellate structure.
The conduct of an officer must be alleged to be one, which
reflects recklessness or complete disregard for the function that
he is performing. Mere erroneous decisions on account of a
mistake of law or facts, cannot be the basis of commencing
proceedings for misconduct.
26. The decision in the case of K.K. Dhawan (supra) cannot
be read to mean that misconduct proceedings can be
commenced, alleging lack of devotion of duty, in cases where the
decisions rendered by quasi-judicial authority are alleged to be
erroneous. There has to be something more than mere allegation
of erroneous decisions to charge an employee for misconduct;
the conduct of an employee must be alleged to be reckless or for
motives. In absence of such imputations, a charge made solely on
the basis of a decision rendered by a quasi-judicial authority
would not be sustainable.
27. The decision in the case of Nagarkar (supra) and in K.K.
Dhawan (supra) are not at variance in the above respect and a
wrong or erroneous exercise of jurisdiction by a quasi-judicial
authority or a mistake of law or an error in facts or law, cannot
form the basis of initiating disciplinary proceedings.
28. The petitioner's contention that the tribunal erred in
relying on the statement of law in Nagarkar (supra) as the law
stated by the Supreme Court in that case is no longer good law,
also cannot be accepted. In the case of Ramesh Chander Singh
(supra) a Bench of three Judges of Supreme Court referred to the
decision in the case of Nagarkar (supra) and held as under:-
"17. In Zunjarrao Bhikaji Nagarkar v. Union of India
(1999) 7 SCC 409 this Court held that wrong exercise of
jurisdiction by a quasi-judicial authority or mistake of law
or wrong interpretation of law cannot be the basis for
initiating disciplinary proceeding. Of course, if the judicial
officer conducted in a manner as would reflect on his
reputation or integrity or good faith or there is a prima
facie material to show recklessness or misconduct in
discharge of his duties or he had acted in a manner to
unduly favour a party or had passed an order actuated by
corrupt motive, the High Court by virtue of its power
under Article 235 of the Constitution may exercise its
supervisory jurisdiction. Nevertheless, under such
circumstances it should be kept in mind that the Judges at
all levels have to administer justice without fear or favour.
Fearlessness and maintenance of judicial independence
are very essential for an efficacious judicial system.
Making adverse comments against subordinate judicial
officers and subjecting them to severe disciplinary
proceedings would ultimately harm the judicial system at
the grassroot level."
29. It is relevant to note that the decision in Ramesh Chand
Singh (supra) was delivered by a bench of three judges on
26.02.2007, is subsequent to the decision rendered by the
Supreme Court in Duli Chand (supra).
30. It is also necessary to bear in mind that a CIT (Appeals),
essentially has to decide the cases based on the contentions
canvassed before him. Proceedings before a CIT (Appeals) are
adversarial proceedings and are bound to be decided in favour of
one or the other party. It is necessary to ensure that a CIT
(Appeals) or any other quasi-judicial authority is not put under
any pressure in discharging his functions. The idea that the
Government could commence disciplinary proceedings if, the
decisions were rendered against the department, would be
pernicious to the effectiveness of the role that is required to be
performed by the CIT (Appeals).
31. We concur with the reasoning of the Tribunal that a quasi-
judicial authority is to act without fear and levelling charges
which are based solely on the decisions rendered by the quasi-
judicial authority would certainly instill fear in the minds of the
officers and, thus, cannot be permitted."
(Emphasis supplied)
30. Though, thus, the swinging of the legal pendulum, between the
Nagarkar and Duli Chand extremes, may, with the development of the
law thereafter, be taken to have been stilled, I am additionally persuaded
to rely on Ramesh Chander Singh (supra), in preference to other
decisions cited hereinabove, for the reason that, unlike the situation which
obtained in Duli Chand (supra), or even in Nagarkar (supra) and
Rajguru (supra), the present case deals, not with an executive officer
exercising quasi-judicial functions, such as a Commissioner of Income
Tax or a Commissioner of Central Excise, but with a judicial officer,
administering the law in a Tribunal which has all the trappings of a Court.
The distinction is subtle, but unmistakable. The pressures which weigh on
a judicial officer, vested with the duty of dispensing justice, whether it be
in a "Court", understood in the classical sense, or in a Tribunal, which
functions, to all intents and purposes, in a manner akin to a Court, are
qualitatively different from those which weigh on an executive Officer,
discharging statutorily conferred quasi-judicial functions. A court is a
court, and a Commissioner‟s office is a Commissioner‟s office, and, in
the case of a dispute such as the present, the distinction between the two
has necessarily to inform the decision of the court, if one is not shut one‟s
eyes to reality.
31. Be that as it may, the extant legal position, regarding subjection of
an officer, exercising judicial or quasi judicial powers, to disciplinary
proceedings, in relation to orders passed in the exercise of such powers, is
that, in the absence of any element of corrupt motives or ulterior motives,
disciplinary action against such officers cannot sustain. This is also
necessary in order to ensure that judicial officers are permitted to function
without, as they are required, fear or favour, affection or ill will, which is
their highest constitutional credo.
32. There is no allegation, against the petitioner, of corrupt motives,
ulterior considerations, or mala fides. The error, on the part of the
petitioner, as the respondent perceives the petitioner to have committed,
is only in allowing the matter to be compromised, between the Bank and
the debtors, at a figure which was much less that the actual debt which, it
is sought to be alleged, might have been liquidated, had the compromise
not taken place. In other words, it is the commercial expediency of the
decision of the petitioner, which is being sought to be called into
question, in the disciplinary proceedings pending against him. To borrow
the words used in the charge-sheet (whatever they may mean), what was
alleged against the petitioner was "incapacity to function as a Presiding
Officer in a befitting manner". In what more "befitting" manner, placed
in the circumstances in which he was, the petitioner could have acted, the
charge-sheet does not, significantly, condescend to disclose.
33. De hors the correctness, judicially examined, of the decision of the
petitioner to compromise the matter by allowing the joint application filed
by the Bank and the debtors, the said decision, not being alleged to be
tainted by any ulterior motives, could not have legitimately constituted
the basis for initiating disciplinary proceedings against the petitioner.
Even of the sole ground, therefore, the proceedings would be liable to be
quashed in their entirety.
34. On merits, too, however, the proceedings against the petitioner are,
on the face of it, thoroughly misconceived. It is clear, from the authorities
relied upon by the petitioner, of this court, that the petitioner had, when
faced with the application of the Bank, and the proposal for compromise,
signed by all parties, no option but to settle the disputes in terms thereof.
It was not open for the petitioner to go behind the said compromise and
start dissecting the compromise by examining its commercial expediency
or otherwise. Any such attempt, on the part of the petitioner, would have
amounted, in fact, to exceeding his authority, and the jurisdiction vested
in him by law.
35. It is ironical, therefore, that, for proceeding in the manner
sanctified by authorities of this court, the petitioner has been visited with
the presently impugned disciplinary proceedings, which deserve,
therefore, to be eviscerated even at this juncture, without subjecting the
petitioner to the ignominy of having to further negotiate the distasteful
course thereof.
36. I may note, in passing, that the petitioner is also protected by the
provisions of Section 33 of the Act as there is no allegation that the action
of the petitioner was not bonafide.
Conclusion
37. In view of the above discussion, the impugned
memorandum/chargesheet dated 28th March, 2018, issued to the
petitioner, as also all proceedings that follow thereupon, are held to be
unsustainable on facts as well as in law and, consequently, quashed and
set aside.
38. The writ petition is, accordingly, allowed.
39. Though, in the facts of the case, costs may have been warranted, in
view of the eminently reasonable stand adopted by Mr. Soni, I refrain
from imposing any.
40. All pending applications stand disposed of accordingly.
C.HARI SHANKAR, J
SEPTEMBER 25, 2018/kr
