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CASE NO.:

Appeal (civil) 5182 of 2001

PETITIONER:

P.C. JOSHI

Vs.

RESPONDENT:

STATE OF U.P. & ORS.

DATE OF JUDGMENT: 08/08/2001

BENCH:

S.Rajendra Babu & Doraiswamy Raju

JUDGMENT:

RAJENDRA BABU, J. :

Leave granted

This appeal is directed against the order of the High Court of

Allahabad dismissing a writ petition filed by the appellant. Certain

disciplinary proceedings were initiated against the appellant. After

inquiry, he was held guilty of the charges and was ultimately terminated

from service. A writ petition was filed by him in the High Court on the

grounds, inter alia, that:

1. The charges leveled against him do not constitute misconduct; and

2. The findings recorded in the inquiry are based on conjectures and

surmises and not on facts.

The High Court found that there was material for the inquiry

officer to reach the conclusions adverse to the appellant and dismissed

the writ petition.

The disciplinary proceedings were initiated, inter alia, on

complaints made by two Advocates, namely, V.K.Tiwari and Rajiv Kumar

Singh. Nine charges were leveled against the appellant, seven of them

pertain to orders of bail granted in 19 cases. During his tenure of two

years at Etah, the appellant is stated to have disposed of over 3,000 bail

applications. Only 19 bail orders out of these 3000 bail applications

were the subject matter of charge sheet. The Enquiry Officer, however,

found that in 7 cases, orders of bail were properly granted and the

charges were not proved to that extent. In four cases the charges are

held to be partly proved. In one case, the appellant himself had recalled

the order of bail after about 1-1/2 months of the grant of bail on an

application made by the complainant on the ground that the bail was

obtained by fraud and misrepresentation. In two other cases, according

to the Enquiry Officer, bail ought to have been granted on the very first

application, but it was granted on the second application. The Enquiry

Officer took note of each one of the cases before him and re-examined

whether bail should have been granted in each one of those cases or not.

The parties concerned had not made any complaint in any one of the

cases. On examination of each one of the charges in relation to grant of

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bail, the Enquiry Officer proceeded to consider the cases on merits. He

found that there used to be a pattern in rejecting the first bail application

and thereafter even in the absence of fresh ground, second bail

application was entertained and bail had been granted or in certain other

cases even in the first instance itself the bail ought to have been granted.

Although we have been taken through the various charges levelled

against the appellant in detail and the material placed before the Enquiry

Officer, it is clear that inferences have been drawn only on the basis that

either the applications had been rejected at earlier stage for grant of bail

or such applications ought to have been granted at the first stage itself.

However, no specific material was brought on record to show or prove

that there were any mala fide or extraneous reasons on the part of the

appellant in passing the orders.

The test to be adopted in such cases is as stated by this Court in

the cases of Union of India & Ors. vs. A.N.Saxena, 1992 (3) SCC 124

and Union of India & Anr. vs. K.K.Dhawan, 1993 (2) SCC 56. In

K.K.Dhawans case [supra], this Court indicated the basis upon which a

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

judicial action 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.

Dealing with a matter of similar nature in Ishwar Chand Jain vs.

High Court of Punjab & Haryana & Anr., 1988 Supp. (1) SCR 396, the

following observations were made by this Court :

.. While exercising control over the subordinate judiciary under

the Constitution, the High Court is under a constitutional

obligation to guide and protect judicial officers. An honest, strict

judicial officer is likely to have adversaries. If complaints are

entertained on trifling matters relating to judicial officers which

may have been upheld by the High Court on the judicial side, and

if the judicial officers are under constant threat of complaints and

enquiry on 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. An independent and honest judiciary is

a sine qua non for the Rule of law. It is imperative that the High

Court should take steps to protect its honest judicial officers by

ignoring ill-conceived or motivated complaints made by

unscrupulous lawyers and litigants. [p.409]

In the present case, though elaborate enquiry has been conducted

by the Enquiry Officer, there is hardly any material worth the name

forthcoming except to scrutinize each one of the orders made by the

appellant on the judicial side to arrive at a different conclusion. That

there was possibility on a given set of facts to arrive at a different

conclusion is no ground to indict a judicial officer for taking one view and

that too for alleged misconduct for that reason alone. The Enquiry

Officer has not found any other material, which would reflect on his

reputation or integrity or good faith or devotion to duty or that he has

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been actuated by any corrupt motive. At best he may say that the view

taken by the appellant is not proper or correct and not attribute any

motive to him which is for extraneous consideration that he had acted in

that manner. If in every case where an order of a subordinate court is

found to be faulty a disciplinary action were to be initiated, the

confidence of the subordinate judiciary will be shaken and the officers

will be in constant fear of writing a judgment so as not to face a

disciplinary enquiry and thus judicial officers cannot act independently

or fearlessly. Indeed the words of caution are given in K.K.Dhawans

case [supra] and A.N.Saxenas case [supra] that merely because the

order is wrong or the action taken could have been different does not

warrant initiation of disciplinary proceedings against the judicial officer.

In spite of such caution, it is unfortunate that the High Court has chosen

to initiate disciplinary proceedings against the appellant in this case.

There are other two charges in respect of which the appellant was

found to be guilty. One relates to grant of order of stay of disconnection

of telephone for non-payment of Rs.410/- to the Telephone Department

in a consumer dispute filed by a senior government doctor. All that he

did in his capacity as Incharge District Judge on the assumption that the

District Judge being the ex-officio Chairman of the District Consumer

Forum he could grant such an order and that too when one of the

members of the Forum has placed the papers before him seeking for

orders. At best it is a case of bona fide and erroneous exercise of judicial

powers and that matter cannot be treated as misconduct at all. How the

Enquiry Officer could arrive at a finding that it is falling in one of the

categories mentioned above surpasses our comprehension.

The last charge is to the effect that the appellant had appointed a

mali [gardener] on a temporary basis for a period of 3-12 months at a

time when he was Incharge District Judge. The action of the appellant

was too trivial to call for any action because the appointment made by

him was not pursuant to any improper motives such as illegal

gratification or otherwise. How the same amounts to misconduct is not

clear to us at all except to state that he was only Incharge District Judge.

Thus we find that the findings recorded by the Enquiry Officer are

totally vitiated for want of any legally acceptable or relevant evidence to

support the charges of misconduct. In the absence of any evidence, the

Enquiry Officer could not have reached the conclusion in the manner he

did, and these findings affirmed by the disciplinary authority also stand

vitiated.

The learned counsel for the respondents sought to rely upon a

number of decisions of this Court to indicate the scope of interference in

matters of this nature. We have adverted to the broad principles

attracted to a case of this nature which are sufficient for disposal.

Hence, we do not refer to other decisions.

We, therefore, have no hesitation to allow this appeal, set aside the

order made by the High Court and thereby allow the writ petition filed by

the appellant, directing his immediate reinstatement in service with

continuity of service and all consequential benefits such as payment of

arrears of salary and other benefits. No costs.

J.

[ S. RAJENDRA BABU ]

...J.

[ DORAISWAMY RAJU ]

AUGUST 08, 2001.

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