Ambika Prasad Gupta vs The Registrar General, The High ...
2023 Latest Caselaw 4167 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.563 of 2017
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Ambika Prasad Gupta S/o Late Mahesh Prasad, Dismissed Ad hoc ADJ, resident of Mohalla- Shanti Nagar, Colony, Near Binnanni Degree College, Mirjapur, P.S.- Bharauna, P.O.- Mirjapur, District- Mirjapur, U.P.

... ... Petitioner/s Versus The Registrar General, The High Court Of Judicature At Patna

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s     :      Mr. Abhinav Shrivastava, Advocate
                                Mr. Shashank Chandra, Advocate
                                Mrs. Kumari Shubham, Advocate
                                Mr. Vatsal Verma, Advocate
For the P.H.C.           :      Mr. Piyush Lall, Advocate

====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE PARTHA SARTHY CAV JUDGMENT

(Per: HONOURABLE THE CHIEF JUSTICE)

Date : 31-08-2023

The petitioner was an Additional District Judge

(A.D.J.), who was dismissed from service and the writ petition

is against the dismissal order, passed after due inquiry Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

conducted into the allegations levelled against him.

2. The petitioner was recruited into the Bihar Judicial

Service as an A.D.J after coming out successful in the Bihar

Higher Judicial Services Examination. In the year 2015, the

petitioner had completed 25 years of service as Judicial Officer,

having worked at different places inside the State of Bihar and

was last posted as A.D.J. at Darbhanga. The petitioner was

issued with a memorandum of charges as seen from Annexure

P-1 and the petitioner was asked to appear before the Inquiry

Officer with a written statement of defence. The memorandum

contained Annexure-I, a statement of allegations in support of

the Articles of Charges framed, Annexure-II, Articles of Charges

framed against the petitioner, the delinquent employee,

Annexure-III, list of documents and Annexure-IV, list of

witnesses. After this the petitioner was issued with another

memorandum produced as Annexure P-2 dated 26.08.2014

again enclosed with the statement of allegations (Annexure-I),

Articles of Supplementary Charges (Annexure-II), list of

documents (Annexure- III) and a list of witnesses (Annexure-

IV).

3. The District and Sessions Judge, Darbhanga was

appointed as the Inquiry Officer and the Inquiry Officer issued Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

notice to the delinquent by Annexure-P4. Annexure- P5, written

submissions were made before the Inquiry Officer along with

some judgments delivered by the delinquent, which were

confirmed by the High Court; especially since the first of the

allegations levelled was regarding a judicial order passed. The

inquiry report found the delinquent guilty of all the charges

levelled against him and the Registrar General of the High Court

served a copy of the inquiry report on the delinquent through a

covering letter; both of which are produced as Annexure P-6. A

reply was submitted by the delinquent as Annexure P-7 after

consideration of which the delinquent was dismissed as per

Annexure P-8 Order communicated by Annexure P-9.

4. We heard Shri Abhinav Shrivastava, learned counsel

appearing for the petitioner and Shri Piyush Lall, learned

standing counsel for the respondent. Shri Abhinav Shrivastava

at the outset pointed out that there is clear violation of Rule

17(3) of the Bihar Government Servants (Classification, Control

and Appeal) Rules, 2005, since there was no show cause issued

to the delinquent by the Disciplinary Authority who should have

also considered the explanation. It is argued that the allegations

were with respect to judicial orders passed by the delinquent

employee, which cannot form the subject of an administrative Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

action. The Officer had a blemish free career of more than 25

years and merely on unsubstantiated allegations, he was

dismissed from service. The petitioner who was nearing his

retirement has now crossed the age of superannuation and he is

denied his pension by reason of the order of dismissal. Each of

the charges and the inquiry findings were read over to convince

us that the entire inquiry proceedings were a sham and cannot

be sustained for a moment.

5. Shri Piyush Lall, learned Standing Counsel for the

High Court on the other hand supported the order of dismissal

which was based on the inquiry report. It is pointed out that this

Court is not sitting in appeal, and, in judicial review, there is no

scope for re-appreciation of the evidence brought out before the

Inquiry Officer, to arrive at a different finding from that of the

Inquiry Officer, as confirmed by the Disciplinary Authority.

Muzaffar Husain v. State of Uttar Pradesh and Anr. 2022 SCC

OnLine SC 567 was relied upon to argue that herein also, as in

the cited decision, the petitioner had committed a misconduct in

the discharge of his duties as a Judicial Officer with total

disregard to the established procedure and law, to unduly favour

one or other of the parties; which was also actuated by corrupt

motives, on the eve of his retirement. It was argued that no Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

Officer can get emboldened to slip into corrupt practices, just

prior to his retirement, and in that circumstance, there cannot be

a plea raised that the Officer had a blemishless career till then. It

is urged that if such Officers are not punished appropriately,

then there would be frequent recurrence of such occurrences.

6. Annexure P-1 contains the facts regarding the

first allegation levelled against the Officer; which was with

respect to the judgment passed in Sessions Trial Number

109/2013/ 24/2013 arising out of Pakribarawn P.S. Case No. 185

of 2012. The charge against the accused in the said case was

under Section 302 of the Indian Penal Code (I.P.C.). Four

witnesses were examined from amongst whom, only PW4, the

mother of the deceased supported the case of the prosecution.

She deposed that on her arrival at the house of the accused; her

son-in-law, she saw the dead body of her daughter with blood

oozing from the nose and ears. It was also deposed that there

were matrimonial disputes which had been settled by the

Panchayat. PWs 1 to 3 were the villagers of the accused, who

did not support the prosecution case. The allegation in the

inquiry was that the delinquent officer did not examine the

Investigating Officer and the Medical Officer. The evidence of

the prosecution was closed; allegedly on the basis of a petition Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

filed by the prosecution, which was not found in the records of

the case, and acquitted the accused on 11.06.2013. It was further

alleged that on 11.06.2013, the accused was examined under

Section 313 of the Cr.P.C., and on the same day, the judgment

was delivered. The date of judgment was written in ink while

the month and year were printed; which allegedly raises a

presumption that the judgment was prepared even earlier to the

examination of the accused under Section 313 of the Cr.P.C. It

was alleged that the delinquent had not followed due procedure

and had prepared the typed judgment in advance; all of which

are indicative of extraneous consideration, gross judicial

incongruity, lack of integrity and an act unbecoming of a

Judicial Officer.

7. Annexure P-2, the supplementary charges were

from multiple facts emanating from a number of cases. One

allegation was that in Sessions Trial No. 175 of 2013 wherein

inter alia, accusation was under Section 302 of the I.P.C. Two

accused were shown as discharged in the margin of the order-

sheet of the records, respectively on 16.01.2014 and 30.01.2014.

While fixing the case for orders and for framing of charges on

05.03.2014, the discharge order was not passed nor the factum

of such discharge mentioned in the cause list dated 29.01.2014. Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

The next allegation was with respect to bail having been given

to an accused, on the ground that the District & Sessions Judge

had granted the same, while it was declined earlier by the

District & Sessions Judge. There were also 13 allegation

petitions against the delinquent officer wherein the different

complainants had sought for transfer of their cases pending

before the A.D.J., Darbhanga from the Court presided over by

the delinquent. We will deal with the allegations at the time of

considering the inquiry report, but as of now suffice it to notice

that the additional facts leading to the supplementary charges

also resulted in the allegation of extraneous consideration, gross

judicial impropriety, lack of integrity and acts unbecoming of a

Judicial Officer.

8. We cannot, but notice that the first opportunity to

be granted to the delinquent was denied insofar as the show

cause notice having directed submission of the written defence

before the Inquiry Officer and not the Disciplinary Authority.

However, it has to be observed that the entire issue was

considered on the basis of evidence brought forth in the inquiry,

ordered by the Disciplinary Authority. The final orders were

passed after appreciating the evidence led at the inquiry and also

the defence set up by the delinquent. Even if procedural Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

irregularity is found, the matter can only be remanded for

resumption of the departmental proceedings from the stage at

which the irregularity occurred. In the present case, there is no

scope for conducting a de novo inquiry since the allegations

were of the year 2015, and the delinquent has now passed the

age of superannuation. There is absolutely no purpose of

resuming the inquiry from the stage of such defect, since it

would only lead to further harassment of the delinquent, without

any purpose served.

9. We have looked at the inquiry report, not for the

purpose of appreciation of evidence leading to substitution of

the findings of the Inquiry Officer; but to ensure that the

findings on facts are not perverse, which examination is

permitted, even in judicial review.

10. As far as the first charge alleged, we find from

the inquiry report that after examining the informant (PW4), she

was discharged on 06.05.2013 and summons were issued

against the Doctor and Investigating Officer in Session Trial No.

109/2013/24/2013. On 23.05.2013, bailable warrant was issued

against the Doctor and Investigating Officer and the same was

handed over to the learned Additional Public Prosecutor, for

service. On 03.06.2013, neither was a service report filed nor Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

did the witnesses appear for evidence. The case was then

adjourned to 10.06.2013 on which date an order was passed in

which mention was made about a petition filed by the

prosecution that there was no requirement to examine the

husband of the informant as a witness and seeking closure of

evidence from the prosecution side. The evidence was closed on

10.06.2013 and the accused examined on 11.06.2013, on which

date the judgment was also delivered acquitting the accused.

11. It is seen from the inquiry report that the records

of the case did not indicate a petition having been filed by the

prosecution; when the order dated 10.06.2013 indicated such a

petition. The prosecution having not opposed the filing of a

petition to chose the evidence, it was incumbent upon the

department to examine the Prosecutor in the inquiry conducted.

It is also very evident that steps were taken against the Doctor

and the Investigating Officer and the prosecution did not follow

it up diligently. The prosecution later filed an application to

close the evidence which is clearly recorded in the order dated

10.06.2013 based on which the accused was summoned on

11.06.2013. With the scanty evidence available, we cannot find

any irregularity in the judgment having been passed on

11.06.2013 itself; on which date the accused was examined Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

under Section 313 of the Cr.P.C.

12. We are quite aware of the fact that, not always a

judgment is delivered on the same day, but the routine practices

shall not be a reason to raise a presumption against the Officer;

especially of having acted with extraneous considerations. There

is absolutely no accusation levelled against the Officer of

extraneous consideration nor does the facts disclose any such

extraneous reason having regulated the proceedings in the

sessions trial. The judgment having been delivered on the same

day and the date alone having been incorporated in hand also

cannot be a reason to presume that the order was written earlier.

The evidence recorded was only of four witnesses, three of

whom turned hostile and the mother of the deceased did not

incriminate the accused on the offence of murder, directly. The

judgment could have been delivered on the date of questioning

under Section 313 of the Cr.P.C. We find that the first charge

levelled against the delinquent to have been not at all proved in

the inquiry, and the Inquiring Officer having found the

delinquent to be guilty, in a cursory manner which would result

in the same being termed a perverse finding.

13. The next charge is with respect to Sakatpur

P.S. Case No. 53 of 2011, wherein a petition for discharge under Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

Section 227 of the Cr.P.C. was filed on behalf of two accused. It

was alleged that the discharge petition though heard on

29.01.2014, there was no detailed order passed and the matter

was posted to 16.01.2014 with a note on the margin of the order-

sheet that the matter is taken for orders. Detailed order is said to

have been passed later, but there is no date of order ascertained

by the Inquiry Officer, in the inquiry conducted. Merely because

the sessions trial was fixed on 05.03.2014 for orders and

framing of charge and the discharge order passed by the

delinquent officer not having mentioned in the cause list dated

29.01.2014, the delinquent officer was found to have committed

irregularities, based on extraneous considerations. We find

absolutely no basis for the aforesaid finding, especially when

there were multiple accused in the case and only two were

discharged by the delinquent officer. It was only natural that

after the discharge of the two accused, the case was posted for

framing of charge against the other accused. The evidence led

on this accusation does not bring forth any corrupt practices or

an extraneous consideration and at the worst there is only an

irregularity in the discharge order not being made available on

the date on which it is said to have been passed.

14. In so far as S.T. No. 371 of 2013, bail was Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

granted to an accused, allegedly on the ground that it was

granted by the District Judge by order dated 12.09.2013. By a

perfunctory finding, the Inquiry Officer found the bail order to

be indicative of extraneous consideration since the order dated

12.09.2013, rejected the bail sought for by the accused. In fact,

it is evident from the statement of facts itself that the allegation

itself was that the order on 12.09.2013 rejected the bail and

permitted the accused to move for fresh bail after three months.

It was later on, in a subsequent bail petition, the delinquent

officer granted bail on 03.01.2014. The fact of an earlier bail

granted having been reflected in the order dated 03.01.2014 is at

best an inadvertent mistake. Probably, the order only intended to

speak about the liberty granted to the accused in the earlier

order. In fact, if bail was granted in the earlier order, there was

no requirement for a subsequent application for bail or an order

granting such bail. The second charge, especially with respect to

extraneous consideration, also has been perfunctorily found

without any evidence, again bordering on perversity.

15. Now, we come to the third charge which is with

respect to 13 allegations made by PW1 to 13 against the

delinquent officer. It has to be emphasized that the evidence led

is only with respect to the delinquent officer having talked with Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

the accused, the advocate for the opposite party having been

seen entering the chambers of the delinquent and so on and so

forth, which by itself does not raise any presumption of

extraneous consideration or acting or conducting himself in a

manner unbecoming of a Judicial Officer. However, we have to

notice one of the complainants having specifically spoken of the

delinquent officer having informed him about the opposite party

having given the delinquent Rs. 70,000/- to pass an order in his

favour, and demanded amounts in excess of that from the

complainant. The complainant when he was examined in chief

admitted that he had given the transfer application and that the

case was fixed before the A.D.J. -2, for orders. He also stated

that there was some talk about money and that he is a poor

person who has no source of money. However, in cross-

examination the witness stated that the clerk of the opposite

party informed him that he has purchased the Judge Sahab for

Rs. 70,000/-. The complainant hence talked with the Judge

Sahab when he was called to the residence. It is also stated that

when he went to the residence, the Judge himself told him that

the other party is giving Rs. 70,000/- and asked how much the

complainant would give. It cannot, but be observed that there is

a ring of falsity in the deposition. It is very improbable that a Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

party would talk directly to the Judge on information received

from the clerk and then go to the house of the Judge before

whom the case is posted. The statements made in cross-

examination has also to be considered in juxtaposition with no

such case having been put forth in the chief examination. There

was no other evidence regarding the demand of bribe except the

testimony of the complainant before the Inquiry Officer. As

facts remained, the case was also transferred from the Court of

the delinquent officer.

16. Muzaffar Husain (supra) is a case in which it was

held that there was enough evidence and material to show that

the appellant had misconducted himself while discharging his

duties as a Judicial Officer and had passed the judicial orders in

utter disregard of the specific provisions of law, "to unduly

favour the subsequent purchasers of the acquired lands who had

no right to claim compensation, and that such orders were

actuated by corrupt motive"(sic-Para14). The delinquent

employee was also found to have conducted the proceedings in

a manner which reflected sadly on his reputation and integrity.

We cannot, but refer to the cited decisions in Abhay Jain v.

High Court of Judicature at Rajasthan; 2022 SCC OnLine SC

319, Sadhna Chaudhary v. State of U.P.; (2020) 11 SCC 760 Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

and Krishna Prasad Verma (Dead) through Legal

Representatives v. The State of Bihar and Ors; 2019 SCC

OnLine SC 1330, wherein it had been declared that suspicion

cannot constitute misconduct and that any probability of

misconduct needs to be supported with oral or documentary

evidence.

17. Ramesh Chander Singh v. High Court of

Allahabad; (2007) 4 SCC 247 disapproved the practice of

initiation of disciplinary proceedings merely on ground of the

judicial orders passed, being wrong, which wrong can be

corrected by the higher Courts. Krishna Prasad Verma (Dead)

(supra) was a case in which the Hon'ble Supreme Court again

cautioned the High Courts from taking action on the basis of

judicial orders, only on the ground of an error committed in the

order passed and held that "To err is human and not one of us,

who has held judicial office, can claim that we have never

passed a wrong order"(sic). While emphasizing that there should

be zero tolerance for corruption, it was also cautioned that

wrong judicial orders passed cannot lead to disciplinary action

unless there is evidence that the wrong orders were passed for

extraneous reasons. Ishwar Chand Jain v. High Court of P &

H; (1988) 3 SCC 370, while reiterating the above principle held Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

that 'it is imperative that the High Court protects its honest

officers by ignoring ill-conceived or motivated complaints made

by the unscrupulous lawyers and litigants'. It was also observed

that strict judicial officers often create adversaries, especially in

the mofussil courts and the High Court cannot initiate inquiry

on trifling matters relating to judicial orders.

18. With the above conspectus of principles in the

background, we have to verify the allegations raised against the

delinquent officer. We have found that in none of cases, except

one, where there is an allegation of demand of bribe, there is

any factual substantiation of extraneous reasons having weighed

with the Judicial Officer, the delinquent officer. However, there

is one case in which there was a demand of bribe as stated by

the complainant; which was omitted to be stated in chief

examination. The oral testimony made in cross examination was

the sole evidence, but however, this casts a suspicion on the

integrity of the officer. Suspicion, cannot take the place of

positive proof, but in the present case it has to be noticed that

there has been a number of instances where the litigants had

sought for transfer of the cases from the Court of the Officer

concerned. Hence, though there is no positive proof or any

corrupt practices or reflection of the integrity of the Judicial Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

Officer; definitely the conduct of the Judicial Officer was

wanting.

19. Insofar as the allegation with respect to the

acquittal of an accused charged with murder, we have noticed

that the prosecution was not diligent in pursuing the matter. As

we observed, there cannot be any finding of extraneous

consideration merely for reason of the judgment acquitting the

accused having been passed on the same date on which the

accused was questioned under Section 313 of the Cr.P.C.;

especially considering the fact that there was only one witness

who also did not incriminate the accused personally and

directly; with the other three witnesses having turned hostile.

However, justice should not only be done, but also seen to be

done and it was only proper that the Judicial Officer took

sometime in considering the matter, especially after questioning

the accused under Section 313. Insofar as the grant of bail is

concerned, there is lack of sufficient care in passing orders;

especially when the earlier rejection of a bail petition was

noticed as a grant of the bail sought for. The very same lack of

care and caution is reflected in the order of discharge having not

been dictated on the date on which it is said to have been

pronounced.

Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

20. As we notice, we do not find any sustainable

allegation of corrupt practice or lack of integrity. However, the

conduct of the Judicial Officer was wanting and the instances

alleged specifically bring forth impropriety and irregularity in

the procedure followed. Considering also the fact that the

petitioner had a blemishless career of more than 25 years, we

are of the opinion that there should be interference caused to the

penalty imposed, especially considering the gravity of the

allegations; which does not bring forth any specific instance of a

corrupt practice or lack of integrity. We hence, allow the writ

petition partly setting aside the order of the Disciplinary

Authority to the extent it affirms the order of the Inquiry Officer

regarding the guilt of the accused on the charges of allegation of

extraneous considerations in passing the judicial orders.

However, we find that the delinquent officer did not conduct

himself as a Judicial Officer should have conducted and there

was gross impropriety and irregularity coming forth from the

allegations raised. We set aside the penalty of dismissal and

impose on him the penalty of compulsory retirement, especially

considering the fact that the delinquent officer was at the fag

end of his carrier.

21. The writ petition stands allowed to the above extent Patna High Court CWJC No.563 of 2017 dt. 31- 08-2023

and the petitioner shall be given all consequential benefits based

on the modification in penalty. Parties shall suffer their

respective costs.

                                                                    (K. Vinod Chandran, CJ)


                      Parth Sarthy, J                  I agree


                                                                        (Partha Sarthy, J)

Anushka/-
AFR/NAFR
CAV DATE                18.08.2023
Uploading Date          31.08.2023
Transmission Date