Hon'ble Supreme Court in the case of Kunj Bihari Misra (supra) laid down as under:
“19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”
31. It may be noticed here that after the law was laid down by Hon'ble Supreme Court in the case of Kunj Bihari Misra (supra) specific provision in this regard has been inserted in the Rules of 1958 as Rule 16(10A) in the year 2003, as reproduced hereinbefore.
32. In the present case as admittedly the copy of the resolution of the Full Court was not made available to the petitioner, the same apparently was in violation of the resolution itself as well as express provisions of Rule 16(10A) of the Rules, 1958 and results in causing prejudice to the petitioner, who being unaware of the opinion of the Full Court did not make any representation qua the said opinion of the Full Court.
33. The rest of the issues sought to be raised by the petitioner pertaining to the findings of the Inquiry Judge, on account of the fact that the Full Court apparently formed the opinion that the petitioner acted with corrupt motive also, go into oblivion at this stage.
34. In view of the fact that the opinion of the Full Court was not communicated to the petitioner and petitioner could not make any representation qua the said opinion, further the Full Court rejected the representation and the State acting on the opinion of the Full Court has ordered for dismissal of the petitioner, the order of dismissal stands vitiated.
In the High Court of Rajasthan at Jodhpur
(Before Sangeet Lodha and Arun Bhansali, JJ.)
Ghanshyam Giri v. Rajasthan High Court through the Registrar General,
D.B. Civil Writ Petition No. 637/2012
Decided on September 20, 2017
Citation: 2017 SCC OnLine Raj 2559
Arun Bhansali, J.:— This writ petition under Article 226 of the Constitution of India is directed against the order of punishment dated 8/12/2011 (Annex.9), whereby, the petitioner has been dismissed from service.
2. The petitioner was selected in Rajasthan Judicial Service and joined his duties on 4/4/1988; he was promoted to the post of Additional District Judge (Fast Track) on 25/4/2002 and while he was posted at Baran, a Memorandum under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (‘the Rules, 1958’) was issued to the petitioner on 11/8/2008 accompanied with Statement of Charges and Statement of Allegations. The Memorandum indicated the charges as under:
“STATEMENT OF CHARGE NO. 1
While you were posted and functioning as Addl. Sessions Judge (Fast Track), Baran, Session Case No. 164/03 State of Raj. v. Ram Kishan u/s. 148, 365, 302, 201 & 120B I.P.C. was pending for trial in your court. In this case it is alleged that you accepted bribe of Rs. Twenty Thousand per accused from accused persons & discharged accused from grave offences under section 302, 365 I.P.C. & framed charges for offences u/s 148, 120B, 304/149 & 201 I.P.C. of lesser gravity, vide your order dated 8.12.2003. After this order you accepted the bail applications of accused persons in judicial custody including accused Banshi Lal vide your order dated 8.12.2003, though these bail applications were filed on 23.10.2003, 11.11.2003 & 18.11.2003 respectively & were pending but you intentionally lingered on these bail applications without any proper justification till order for charge was not passed by you. You also did not considered the fact that bail application of accused Banshi Lal u/s 439 Cr.P.C. had already been rejected by District & Sessions Judge, Baran vide his order dated 14.10.2003.
Thus you while passing order with regard to charges and deciding the bail application of accused persons, acted with corrupt & ulterior motive to give undue benefit to accused persons and committed gross misconduct.
STATEMENT OF CHARGE NO. 2
While you were posted & functioning as above you have not earned good reputation during your posting period at Baran. Your general reputation was bad & integrity was doubtful in the eyes of Bar Members, Litigants and public.
Thus you acted as unbecoming of a judicial officer and failed to maintain dignity & decorum of the office held by you and lowered down the image of the judiciary in the eyes of general public and committed gross misconduct.”
3. The petitioner filed his reply denying the charges contained in the Memorandum.
4. During the course of inquiry proceedings, two witnesses, P.W.1 Smt. Lalita Gurjar and P.W.2 Tara Chand Gurjar were examined. The petitioner did not lead any evidence.
5. After hearing the parties, the Inquiry Judge, on the two charges as noticed hereinbefore, inter alia came to the following conclusion by his inquiry report dated 31/3/2011:
Charge No. 1
“………………….
…………………
In this view of the matter, I am of the opinion that no cogent evidence has been adduced by the prosecution to prove the charge no. 1 against the delinquent officer”
Charge No. 2
“..……………….
..………………
In this view of the matter, in support of charge No. 2 levelled against the delinquent officer no evidence has been produced before the inquiry.
In view of the above facts and circumstances of the case, although the charges are not proved by leading evidence and upon mere allegations levelled by the complainant has been filed but, certain facts which emerge in this inquiry are required to be taken into consideration for the purpose of allegation of not maintaining judicial discipline and dignity.
It is true that Addl. Sessions Judge being trial Judge is having jurisdiction to first hear arguments upon framing charge upon request of counsel for accused and, thereafter, can decide the bail applications on the basis of material on record. Even if it is prayed by the counsel for the accused that adjournment may be granted and arguments upon the charge may be heard first, then also, in the event of framing charge for other offences, important aspect of the matter was to be taken into account that in the investigation charge-sheet was filed under Section 302 I.P.C. In that event, the delinquent officer was under obligation to at least give time to the prosecution to challenge the order of framing charge and bail applications were to be decided thereafter. But, in this case, on 08.12.2003 the charge for offence under Section 304/149, 148, 120B and 201 I.P.C. was framed while discharging the accused from offences under Sections 302 and 365, I.P.C. and, on the same day, bail application was allowed. It appears that the Judicial Officer was in hurry to decide the bail applications as soon as he altered the charge. It appears that with an attempt to over-reach the judicial system, on the same day the charge was altered and bail applications were decided which were pending since 23.10.2003, 11.11.2003 and 18.11.2003. This fact generates doubt that the delinquent officer was in hurry to decide the bail applications after framing charge. Therefore, even though the evidence with regard to acting as unbecoming of a judicial officer and failing to maintain dignity and decorum of office held by the delinquent officer was not produced by the prosecution but due to said act of the delinquent officer it has cut into the faith of people in the administration of justice. The delinquent officer has thus failed to observe sufficient degree of caution and judiciousness which was expected of him being member of Higher Judicial Service capable of being entrusted sessions trial, Public faith in administration of justice is ornament of judiciary. Justice must not only be done, it must appear to have been done. In the facts and circumstances of the case, therefore, I am of the opinion that the delinquent officer has failed to maintain judicial efficiency. In this view of the matter, my conclusion is that charge No. 2, on the facts and circumstances of the case, is to be treated to be partly proved.”
6. The Inquiry Judge ordered the same to be placed before the Hon'ble Chief Justice.
7. From the record, it appears that the inquiry report dated 31/3/2011 was placed before the Full Court and the Full Court in its meeting dated 22/5/2011 passed the following resolution:
“Resolved to accept the enquiry report submitted by Hon'ble Shri Justice Gopal Krishan Vyas. While accepting the report, the Full Court is of the opinion that the officer appears to have acted with corrupt motive also. Let copy of the enquiry report be sent alongwith Resolution of the Full Court to the delinquent officer inviting his representation.”
8. The petitioner was issued show cause notice dated 13/6/2011 along with the inquiry report dated 31/3/2011 asking him to submit his written representation. The petitioner filed his representation dated 23/6/2011. The Full Court in its meeting dated 5/11/2011 passed the following resolution:
“The representation of Sh. Ghanshyam Giri is duly considered and rejected. It is resolved that he be dismissed from service. The Government be moved accordingly.”
9. The State Government by its order dated 8/12/2011 pursuant to the Full Court resolution dated 5/11/2011, ordered for dismissal of the petitioner from service.
10. It is claimed that after receipt of the dismissal order the petitioner sought copy of the resolution of Full Court dated 22/5/2011, which was supplied to him by the Registrar (Administration) under his letter dated 28/12/2011.
11. It is submitted by learned counsel for the petitioner that the Inquiry Judge by his inquiry report clearly absolved the petitioner of charge no. 1 and on a totally vague charge no. 2, though came to the conclusion that no evidence was produced in support of charge no. 2 and that the same was not proved, still went on to make observations and found the petitioner guilty of failure to maintain judicial efficiency, a charge which was neither indicated nor framed.
12. Submissions were made that once the petitioner was absolved of the allegations as levelled under charge no. 1, no finding as indicated under charge no. 2 could be arrived at by the Inquiry Judge. It was also submitted that the charge no. 2, as framed, was quite general/vague in nature alleging that the petitioner had not earned good reputation during his posting at Baran, his general reputation was bad and integrity was doubtful in the eyes of bar members, litigants and public and based on the said allegations, it was indicated that the petitioner acted as unbecoming of a judicial officer and failed to maintain dignity and decorum of office, however based on the selfsame allegation as contained in the charge no. 1, for which the petitioner was absolved, again under charge no. 2 he has been held guilty of failure to maintain judicial efficiency, which finding is self contradictory, beyond the charge and against the record.
13. Further submissions were made that after the inquiry report was submitted, the Full Court in its resolution opined that the petitioner appeared to have acted with corrupt motive also and directed that a copy of the inquiry report along with resolution of the Full Court be sent to the petitioner inviting his representation, however, copy of the resolution of the Full Court was not sent to the petitioner along with the show cause notice and a copy of the inquiry report only was sent. It was submitted that the opinion of the Full Court essentially amounts to disagreement with the findings of the Inquiry Judge wherein the petitioner was absolved of charge no. 1, though it was indicated in the resolution that the inquiry report submitted by the Inquiry Judge was accepted by the Full Court.
14. It was submitted that on account of apparent disagreement with the inquiry report, it was required of the Full Court to record reasons for its disagreement, communicate the same to the petitioner and then seek his representation, which the respondents have failed to do and, therefore, the entire action on the part of respondents stand vitiated.
15. Further submissions were made that the resolution passed by the Full Court itself was non-speaking, which could not form the basis for the impugned action. It was also submitted that the punishment was highly disproportionate to the gravity of the charges inasmuch as the petitioner was due to retire in about six months from the date order was passed and, therefore, the order impugned deserves to be quashed and set aside.
16. Reliance was placed on Sur Enamel & Stamping Works Ltd. v. The Workmen:AIR 1963 SC 1914, Sawai Singh v. State of Rajasthan: (1986) 3 SCC 454 : AIR 1986 SC 995, M.V. Bijlani v. Union of India: (2006) 5 SCC 88, The State of Punjab v. Bakhtawar Singh: (1972) 4 SCC 730 : AIR 1972 SC 2083, Punjab National Bank v. Kunj Behari Misra: (1998) 7 SCC 84, State Bank of India v. K.P. Narayanan Kutty: (2003) 2 SCC 449,State of Rajasthan v. Jagmohan Singh: 2002 (3) RLR 614, P.C. Joshi v. State of U.P.:(2001) 6 SCC 491, Zunjarrao Bhikaji Nagarkar v. Union of India: (1999) 7 SCC 409 : AIR 1999 SC 2881, Director (Mkt.), Indian Oil Corporation Ltd. v. Santosh Kumar: (2006) 11 SCC 147, Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan: (2010) 9 SCC 496, The Government of Andhra Pradesh v. A. Venkata Rayudu: (2007) 1 SCC 338 and The State of Mysore v. K. Manche Gowda: AIR 1964 SC 506.
17. Learned counsel appearing for the respondent High Court vehemently opposed the submissions made by learned counsel for the petitioner and submitted with reference to Articles 226 and 235 of the Constitution of India that the jurisdiction of this Court in interfering with the decision of the Full Court is limited and that this Court is not sitting as an appellate authority qua the decision of Full Court and, therefore, no interference was called for in the order impugned.
18. It was submitted that the charge no. 2 was quite comprehensive and the Inquiry Judge while considering the said charge came to a specific conclusion that the conduct of the petitioner was such that he failed to maintain judicial efficiency and his conduct was such that same would cut into the faith of the people in the administration of justice and reached to the conclusion that the petitioner failed to maintain judicial efficiency and, therefore, it cannot be said that either the charge was vague or that the finding of the Inquiry Judge was beyond the charge. It was also submitted that merely because the petitioner was absolved of charge no. 1, it cannot be said that no finding with reference to the extent as indicated in charge no. 2 could be given while dealing with the charge no. 2 and, therefore, the entire argument sought to be raised by the petitioner seeking to question the validity of the inquiry report has no basis and the submissions made in this regard deserve to be rejected.
19. Further submissions were made that there was no disagreement with the inquiry report submitted by the Inquiry Judge, which aspect is apparent from the Full Court resolution, which more than once indicated that the inquiry report was accepted and, therefore, the submission made regarding non-recording of the reasons for the disagreement by the Full Court has no basis.
20. Further submissions were made that the petitioner was accorded full opportunity to make representation qua the inquiry report which was duly forwarded to the petitioner and, therefore, no grievance in this regard could be raised by the petitioner. It was submitted that the copy of the Full Court resolution dated 22/5/2011 was sent to the petitioner on 28/12/2011 vide Annex.10.
21. It was submitted that there is no substance in the writ petition and the same deserves to be dismissed.
22. Reliance was placed on Registrar General, Patna High Court v. Pandey Rajendra Prasad: (2012) 6 SCC 357, Rajendra Singh Verma v. Lt. Governor of NCT of Delhi: (2011) 10 SCC 1, High Court of Judicature at Bombay v. Shashikant S. Patil:(2000) 1 SCC 416 and Union of India v. P. Gunasekaran: (2015) 2 SCC 610.
23. We have considered the submissions made by learned counsel for the parties and have perused the material available on record.
24. So far as the scope of present writ petition is concerned, the principles laid down by Hon'ble Supreme Court in this regard are well settled as has been reiterated in the case of Pandey Gajendra Prasad (supra) cited by counsel for the respondent, wherein, it has been laid down as under:
“18. It is trite that the scope of judicial review, under Article 226 of the Constitution, of an order of punishment passed in departmental proceedings, is extremely limited. While exercising such jurisdiction, interference with the decision of the departmental authorities is permitted, if such authority has held the proceedings in violation of the principles of natural justice or in violation of statutory Regulations prescribing the mode of such enquiry of if the decision of the authority is vitiated by considerations extraneous to the evidence on the merits of the case, or if the conclusion reached by the authority, on the face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above.”
25. A bare look at the facts of the present case would reveal that the petitioner was charged under charge no. 1 with the allegations of having accepted bribe of Rs. 20,000/- per accused in case no. 164/2003 State of Rajasthan v. Ram Kishan, whereby, the accused were discharged from grave offences under Sections 302, 365 IPC and charges for the offences under Section 148, 120B, 304/149 and 201 IPC only were framed. The second charge pertaining to the fact that petitioner did not earn good reputation during the posting and his general reputation was bad and integrity was doubtful in the eyes of bar members, litigants and public, which was unbecoming of a judicial officer and that he failed to maintain dignity and decorum of the office.
26. Inquiry Judge after the evidence was led by the Department, came to a definite conclusion on charge no. 1 that no cogent evidence was adduced by the prosecution to prove the charge against the delinquent officer. Qua charge no. 2 also the Inquiry Judge reached to a conclusion that no evidence was produced in support of the said charge and that upon mere allegation levelled by the complainant upon instigation by advocate, the complaint was filed, however, the Inquiry Judge found that the bail applications of the accused, which were pending for sometime were decided on the same day when the charges having lesser gravity were framed without affording any opportunity to the State to question the validity of the order framing the charges, by which action the petitioner failed to maintain judicial efficiency.
27. When the inquiry report was placed before the Full Court, the Full Court by its resolution dated 22/5/2011 though accepted the inquiry report submitted by the Inquiry Judge, however, while accepting the report, the Full Court was of the opinion that the officer appears to have acted with corrupt motive also. The Full Court then directed sending of a copy of inquiry report along with resolution of the Full Court to the delinquent officer inviting his representation.
28. The direction of the Full Court to send a copy of the resolution of Full Court to the delinquent officer inviting his representation has to be noticed in the context of the opinion framed that the officer appears to have acted with corrupt motive also. The apparent reason for the direction to send a copy of the resolution of the Full Court was to comply with the requirement of Rule 16(10A) of the Rules, 1958, which reads as under:
“(10A) The disciplinary authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose and the same to be forwarded to the Government servant for his representation along with a copy of the report of the inquiry.”
29. The admitted facts which emerge from the record are that despite specific direction by the Full Court to send copy of the resolution of the Full Court to delinquent officer (petitioner), only the copy of the inquiry report was sent along with notice dated 13/6/2011 (Annex.7) and the resolution of the Full Court was made available to the petitioner only after the order impugned dismissing the petitioner from service was passed on 8/12/2011, vide communication dated 28/12/2011 (Annex.10). Though the Full Court had recorded its opinion that the petitioner had acted with corrupt motive also, the petitioner being unaware of the opinion of the Full Court pertaining to the charges levelled against him and the findings of the Inquiry Judge wherein qua charge no. 1 he was absolved, filed his representation qua the inquiry report without adverting to the opinion of the Full Court. After considering the representation, the Full Court passed the resolution resolving that the petitioner be dismissed from service.
30. Hon'ble Supreme Court in the case of Kunj Bihari Misra (supra) laid down as under:
“19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”
31. It may be noticed here that after the law was laid down by Hon'ble Supreme Court in the case of Kunj Bihari Misra (supra) specific provision in this regard has been inserted in the Rules of 1958 as Rule 16(10A) in the year 2003, as reproduced hereinbefore.
32. In the present case as admittedly the copy of the resolution of the Full Court was not made available to the petitioner, the same apparently was in violation of the resolution itself as well as express provisions of Rule 16(10A) of the Rules, 1958 and results in causing prejudice to the petitioner, who being unaware of the opinion of the Full Court did not make any representation qua the said opinion of the Full Court.
33. The rest of the issues sought to be raised by the petitioner pertaining to the findings of the Inquiry Judge, on account of the fact that the Full Court apparently formed the opinion that the petitioner acted with corrupt motive also, go into oblivion at this stage.
34. In view of the fact that the opinion of the Full Court was not communicated to the petitioner and petitioner could not make any representation qua the said opinion, further the Full Court rejected the representation and the State acting on the opinion of the Full Court has ordered for dismissal of the petitioner, the order of dismissal stands vitiated.
35. It is well settled law that once the order of punishment is set aside on the ground that the inquiry has not been properly conducted, the matter has to be remitted back to the disciplinary authority to take up the inquiry from the point it stood vitiated and conclude the same afresh. Therefore, the matter has to be remitted back and is required to be dealt with from the stage where the Full Court had directed issuance of notice to the petitioner along with copy of inquiry report as well as copy of Full Court resolution and then proceed with the matter in accordance with the provisions of Rule 16(10A) and 16(10B) of the Rules, 1958.
36. In view of the above discussion, the writ petition filed by the petitioner is disposed of, the order dated 8/12/2011 (Annex.9) dismissing the petitioner from service is quashed and set aside, the matter is remitted back to the disciplinary authority to take up the inquiry afresh, the petitioner shall be supplied the resolution of the Full Court and an opportunity to make a representation, thereafter, the disciplinary authority shall take final decision on the charges framed against the petitioner. Since in the meantime the petitioner has crossed the age of superannuation, he shall not be entitled for any consequential advantages at this stage and the same shall abide by the ultimate result of the disciplinary proceedings.
37. No order as to costs.
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