WPSB/359/2022
2022 Latest Caselaw 2208 UK

    IN THE HIGH COURT OF UTTARAKHAND
               AT NAINITAL
          HON'BLE THE CHIEF JUSTICE SRI VIPIN SANGHI
                             AND
                HON'BLE SRI JUSTICE R.C. KHULBE

                              21ST JULY, 2022

         WRIT PETITION (S/B) No. 359 OF 2022

Between:

Shanker Raj.
                                                               ...Petitioner
and

Hon'ble High Court of Uttarakhand and another.

                                                        ...Respondents

Counsel for the petitioner.         :   Mr. Hari Mohan Bhatia, the learned
                                        counsel.

Counsel for the respondents.        :   Mr. Bhagwat   Mehra,    the   learned
                                        counsel.


JUDGMENT : (per Sri Vipin Sanghi, C.J.)

              The petitioner has preferred the present Writ

Petition to assail the communication dated 09.03.2022,

whereby the petitioner has been subjected to the minor

penalty of censure.              The petitioner also assails the

Annual Confidential Report (ACR) for the year 2021-22,

dated 28.05.2022, whereby he has been given the

overall assessment of merit as "poor" by the District

Judge, Dehradun.
 2.        The background, in which the petitioner was

subjected to the said minor penalty, and given the

overall grading of "poor" may be noted.


3.        It appears that in Special Leave Petition (Crl.)

No. 2493 of 2021, arising out of the final judgment and

order dated 23.12.2020 passed in Writ Petition No. 1899

of 2020 by this Court, on 02.08.2021, the Supreme

Court, while dealing with the aforesaid Special Leave

Petition, passed the following order :-

          "UPON hearing the counsel the Court made the
          following

                                 ORDER

could not be served.

If so, we direct the respondent No. 1 -

State to immediately move a formal application for cancellation of bail of respondent Nos. 2 to 4 within one week from today.

List this matter on 25.08.2021.

The Trial Court shall pass appropriate order on the proposed application for cancellation of bail qua respondent Nos. 2 to 4, by that date."

(emphasis supplied)

4. The application for cancellation of bail of

respondent nos. 2 to 4 before the Supreme Court was,

accordingly, moved before the Trial Court. On

16.08.2021, the Trial Court cancelled the bail of the said

accused by a considered order. Against the cancellation

of bail of the said accused, they preferred a Criminal

Revision being Criminal Revision No. 87 of 2021, which

was dealt with by the petitioner on 18.08.2021, who was

then serving as the Additional District and Sessions

Judge, Dehradun and Special Judge, C.B.I. On that

particular day, the petitioner was also serving as the In-

charge Sessions Judge in the Court. The petitioner

himself dealt with the Criminal Revision No. 87 of 2021,

and passed the order dated 18.08.2021 staying the

cancellation of the bail, ordered by the Trial Court on

16.08.2021.

5. This development was brought to the notice of

the Supreme Court when the aforesaid Special Leave

Petition was listed before it on 25.08.2021. The order

passed by the Supreme Court on 25.08.2021 reads as

follows :-

"UPON hearing the counsel the Court made the following

ORDER

Heard learned counsel for the parties.

Our attention is invited to the order passed by the District Judge, Dehradun dated 18.08.2021.

We are appalled to see that despite sound reasons given by the Trial Court vide order dated 16.08.2021 on the application filed by the prosecution for cancelling bail granted to respondent Nos.2 to 4 in terms of the directions given by this Court on 02.08.2021, by recording flimsy reason, that direction has been nullified

by the District Judge. We deprecate the approach of the District Judge, which, in our view, is completely perverse.

Accordingly, the order passed by the District Judge dated 18.08.2021 is stayed; and the respondent Nos.2 to 4 are directed to immediately surrender before the Trial Court within two days from today, failing which the Investigating Officer shall proceed to arrest them on the third day without fail and report compliance in that regard.

List this matter on 08.09.2021.

Copy of this order be served to the Investigating Officer forthwith by email for information and necessary action."

(emphasis supplied)

6. Though, the petitioner submits that,

subsequently, the said accused surrendered and were,

thereafter, released on bail by the Supreme Court, in our

view, those developments are of no relevance to assess

the conduct of the petitioner, as the impugned action

has been taken against him in the light of the manner in

which he dealt with the Criminal Revision No. 87 of 2021

on 18.08.2021.

7. The aforesaid developments were brought to

the notice of this Court when a complaint was received

from one Akash Kumar Sharma, the Assistant Legal

Manager of the complainant, on 10.09.2021. In the

complaint, allegations were made against the petitioner,

inter alia, of collusion between the petitioner and the

counsel representing the accused. On receipt of the said

complaint, a show cause notice was issued to the

petitioner by this Court on 28.09.2021, which was

served upon the petitioner on 05.10.2021 by the District

Judge, Dehradun. The petitioner gave his reply to the

said show cause notice on 07.10.2021. Since this Court

did not find the explanation given by the petitioner, to

the show cause notice dated 07.10.2021, satisfactory,

another show cause notice was issued to him on

15.11.2021. The said show cause notice, inter alia,

reads as follows :-

"Subject: Show Cause Notice under Rule 10 of The Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003.

Kindly take reference of your explanation dated 07.10.2021 to Show Cause Notice, duly forwarded by the District Judge, Dehradun, vide endorsement letter No.1376/XV-21 dated 07.10.2021. The same was placed before the Hon'ble Court.

Hon'ble Court has observed that your explanation dated 07.10.2021 is not satisfactory and the undersigned is directed to issue a Show Cause Notice to you, under Rule 10 of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003. The substance of the imputation are as under:-

That you have passed an order on 18.08.2021 in Criminal Revision No.87 of 2021 titled as "Manish Verma & others versus State of Uttarakhand & others", on which Hon'ble the Supreme Court passed an order on 25.08.2021 in Special Leave to Appeal (Crl.) No.2493/2021 (IA No.98865/2021) and observed that "We are appalled to see that despite sound reasons given by the Trial Court vide order dated 16.08.2021 on the application filed by the prosecution for cancelling bail granted to respondent Nos.2 to 4 in terms of the directions given by this Court on 02.08.2021, by recording flimsy reason, that

direction has been nullified by the District Judge. We deprecate the approach of the District Judge, which, in our view, is completely perverse."

The order is admitted to be passed by you is not only deprecated by Hon'ble Supreme Court but also considered serious in nature by this Hon'ble Court. Hence Hon'ble Court is satisfied that good and sufficient reasons exist for issuing noticing before imposing penalty mentioned in Rule 3 of the Uttarakhand Government Servant (Discipline and Appeal) Rules. 2003.

Therefore, you are directed to submit your explanation within 15 days that why a penalty under Rule 3 of the Uttarakhand Government Servant (Discipline and Appeal) Rules, 2003, be not imposed upon you.

By order of Hon"ble the Chief Justice

Sd/-

(Dhananjay Chaturvedi) Registrar General/Registrar (Vigilance)"

8. The petitioner also moved the Supreme Court

by moving Miscellaneous Application No. 2011 of 2021,

in Criminal Appeal No. 1004 of 2021, which was taken

up by the Supreme Court on 03.01.2022. The order

passed by the Supreme Court, on the said application,

reads as follows :-

"UPON hearing the counsel the Court made the following

ORDER

The applicant through counsel tenders an unconditional apology for having passed the order under mistaken understanding, which came to be set aside by this Court vide order dated 25.08.2021 being perverse.

It is for the High Court on the administrative side to consider the explanation offered by the applicant whilst reckoning his past record.

Be it noted that the observation made in our order dated 25.08.2021 is only about the judicial approach of the Judge concerned, who had passed the order dated 18.08.2021.

It is for the applicant to persuade the High Court on the administrative side to take a compassionate view of the matter. The High Court may consider the same appropriately. We say no more.

The miscellaneous application is disposed of accordingly."

9. The petitioner submitted a further response to

the show cause notice, dated 15.11.2021, on

05.01.2022. The explanation furnished by the petitioner

was considered by the Administrative Committee No. 1,

consisting of the Hon'ble Judges of this Court, and the

explanation was not found to be satisfactory. The

Administrative Committee resolved to impose the

penalty of censure upon the petitioner. In pursuance of

the said decision of the Administrative Committee No. 1,

taken on 03.03.2022, the impugned order dated

09.03.2022, imposing the punishment of censure, was

communicated to the petitioner. As a consequence of

the imposition of the said penalty, for the assessment

year 2021-22, the petitioner was graded as "poor" by

the District Judge, Dehradun.

10. The submission of the learned counsel for the

petitioner is that the petitioner had acted bonafide while

dealing with the Criminal Revision and passing the order

dated 18.08.2021, and that mere failure on the part of

the petitioner to appreciate and understand the purport

of the aforesaid order passed by the Supreme Court, on

02.08.2021, is not reason good enough to subject the

petitioner to any minor or major penalty. He further

submits that no inquiry has been conducted, and no

finding has been returned that the petitioner had

colluded with the said accused, or the counsel for the

accused, while passing the order dated 18.08.2021. He

further submits that, under Rule 10 of the Uttarakhand

Government Servant (Discipline & Appeal) Rules, 2003 -

which prescribes the procedure for imposition of minor

penalties, it was essential for the disciplinary authority

to record reasons for inflicting the minor penalty. He

submits that neither the impugned order dated

09.03.2022, nor the Minutes of the Administrative

Committee No. 1 dated 03.03.2022, disclose any reason

for imposition of penalty of censure upon the petitioner.

11. We have considered the submission of the

learned counsel for the petitioner, and do not find any

merit in the same.

12. Merely because a Judicial Officer passes an

incorrect order, while dealing with a case, can, normally,

not be a reason to take any disciplinary action against

the Judicial Officer. If this sword of Damocles is kept

hanging on the head of the judicial officer, it would

adversely impact his independent functioning. However,

that is not the premise in the present case, on which the

action was taken against the petitioner. The conduct of

the petitioner has to be tested in the background in

which he dealt with the Criminal Revision No. 87 of 2021

taken up by him on 18.08.2021.

13. The petitioner was aware that the accused had

not appeared before the Supreme Court when it passed

the order on 02.08.2021. In that light, the Supreme

Court passed the order asking the State Government to

apply for cancellation of the bail of the accused. That

application was promptly moved, and on 16.08.2021, by

a detailed order, the Trial Court had cancelled the bail of

the said accused. A perusal of the order dated

18.08.2021 shows that the petitioner proceeded to stay

the cancellation of the bail, on the premise that the

accused/ revisionists had appeared before the Supreme

Court on 04.08.2021 i.e. after the passing of the order

by the Supreme Court on 02.08.2021. However, it did

not occur to the petitioner that - if the accused had

appeared before the Supreme Court on 04.08.2021,

they could have prayed to the Supreme Court to recall

its order of 02.08.2021 and that, as a matter of fact, the

Supreme Court did not recall its order of 02.08.2021.

The petitioner was acting as the In-charge Sessions

Judge, and being an experienced officer, looking to the

background of the case, it is clear to us that he acted

completely recklessly and irresponsibly.

14. Pertinently, when the Supreme Court was

apprised of the order passed by the petitioner on

25.08.2021, the Supreme Court found the conduct of

the petitioner to be deprecable and perverse. Even

when the petitioner moved his application before the

Supreme Court, the Supreme Court reiterated the

findings that the conduct of the petitioner was perverse,

and left it to the High Court to deal with the matter on

the administrative side.

15. So far as the submission of the petitioner that

no reasons were recorded, either by the Administrative

Committee No. 1 in its deliberations held on 03.03.2022,

or while communicating the impugned order to the

petitioner, is concerned, we do not find any merit in the

same either. This is for the reason that the show cause

notice gave ample reasons for the proposed action

against the petitioner. In fact, the reasons are writ large

from the facts that we have taken note of hereinabove,

as the facts speak for themselves. The Minutes of the

Administrative Committee No. 1, dated 03.03.2022, as

well as the impugned order dated 09.03.2022, have to

be read in conjunction with, and in the context of the

show cause notice issued to the petitioner. When read

together, the reasons are clearly discernible.

16. Reliance has been placed by the learned

counsel for the petitioner on the decision of the Supreme

Court in Union of India v. Mohal Lal Capoor and

others, 1973 (2) SCC 836, and, in particular, to

paragraph nos. 27 and 28 thereof. That was a case

where the Selection Committee was required to record

its reasons for the proposed supersession. While there

can be no quarrel with the proposition that the petitioner

is entitled to reasons for the decision taken against him

of subjecting him to the penalty of censure, the context

in which the aforesaid decision was rendered is

materially different.

17. As we have already noticed above, the

reasons for subjecting the petitioner to the penalty of

censure is his conduct with regard to the manner in

which he proceeded to deal with the Criminal Revision

No. 87 of 2021, preferred by the accused, in the face of

the orders passed by the Supreme Court.

18. Learned counsel for the petitioner has also

placed reliance on the decision of the Supreme Court in

P.C. Joshi v. State of U.P., 2001 (6) SCC 491, and,

in particular, to paragraph no. 5 thereof. The Supreme

Court, while referring to its earlier decision in Union of

India & Ors. v. A.N. Saxena, 1992 (3) SCC 124 and

Union of India & Anr. V. K.K. Dhawan, 1993 (2)

SCC 56, indicated the basis upon which a disciplinary

action can be initiated in respect of a judicial or a quasi-

judicial action, which are as follows :-

"(i) where the judicial officer has conducted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty;

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

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

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

(v) that if he had been actuated by corrupt motive."

19. We have already observed hereinabove that

the conduct of the petitioner fell under clauses (ii) and

(iii) extracted hereinabove.

20. Learned counsel for the petitioner also places

reliance on the decision of the Supreme Court in V.K.

Jain v. High Court of Delhi Through Registrar

General and others, (2008) 17 SCC 538. He

particularly places reliance on paragraph no. 58 of this

decision, wherein the Supreme Court laid down the

general guidelines that should be followed while dealing

with the cases of alleged indiscipline or misconduct

against Judicial Officers of the subordinate judiciary.

21. It goes without saying that when the Supreme

Court passed the order on 25.08.2021, extracted

hereinabove, the Supreme Court was conscious of the

aforesaid judgment. The decision of the Supreme Court

in V.K. Jain (supra) cannot be read to mean that even

in cases of indiscipline or misconduct, a Judicial Officer

should be let off, and no consequences should follow. If

that were permitted, it would give a carte blanche to the

judicial officers to continue to act irresponsibly,

recklessly, or even with dishonesty, without any fear of

adverse consequences. That certainly, is not the purport

of the aforesaid decision of the Supreme Court. The

petitioner has been subjected to a minor penalty of

censure which, in our view, was commensurate with the

charge levelled against him in the show cause notice.

22. At this stage, the learned counsel for the

petitioner states that the petitioner would like to seek

review of his Annual Confidential Report grading,

considering his otherwise good conduct and

performance. We permit the petitioner to do so. While

dealing with the review, the Full Court may not be

influenced by our present decision, and the Annual

Confidential Report grading may be reviewed upon its

own merits.

23. With the aforesaid liberty, the present Writ

Petition is, accordingly, dismissed.

24. In sequel thereto, pending application, if any,

also stands disposed of.

________________ VIPIN SANGHI, C.J.

_____________ R.C. KHULBE, J.

Dt: 21st July, 2022 Rahul