Sunday, 8 December 2019

Supreme Court: Error of judgment committed by Judicial officer does not amount to misconduct

It is a disturbing trend nowadays that Judicial Officers are made
scapegoats and penalized whether by inconvenient transfers or otherwise,
whenever there are agitations/ demonstrations against the Judicial Officers
whether by Advocates or others, irrespective of the extent of the fault or
responsibility of the Judicial Officers concerned. In this case, it is patently clear
that action against the Judicial Magistrate had been prompted by the agitation
of Railway employees and disruption of services. No one examined whether
there was any justification for the disruption of services by the Railway
employees for requiring information from two of them or for the detention of a
third employee, a rank outsider to the investigation by the Railway Magistrate,
for hurling abuses at the Magistrate in open Court and threatening him.
It is well settled that an error of judgment does not per se constitute misconduct.
If the Railway Magistrate had acted bona fide but exercised his
powers erroneously based on his perception of the powers of a Judicial Railway
Magistrate, he could not have been held to have committed mis-conduct.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.24840/2019

THE HON’BLE HIGH COURT AT CALCUTTA  Vs MINTU MALLICK 

Dated:NOVEMBER 15, 2019

O R D E R
We find no grounds to interfere with the impugned judgment and order
passed by the High Court except to the extent that costs of Rs.1,00,000/-
(Rupees one lakh only) has been awarded to the respondent officer. The said
costs are set aside.
The Respondent No. 1, a Railway Magistrate, entitled to the use of an
official car, was constrained to avail suburban local train services operated by
the Eastern Railways on 5th May, 2007 so that he was not late for Court, as his
official car had not reported for duty within time.
To his chagrin, the local train was 15 to 20 minutes late. Waiting at the
station for a train can be both tedious and boring. The Magistrate got drawn
into a conversation with commuters waiting at the station. He heard that the
train was always late on account of unscheduled halts after departure from the
previous station, somewhere midway, to offload goods carried in the train
illegally.

In his idealistic exuberance as Railway Magistrate he felt he could not shut
his eyes to unlawful activities within his jurisdiction, by a group of Railway
employees, in connivance with each other, and thus sprang into action. He
assumed the role of a righteous ‘Don Quixote’ zealously fighting perceived
wrong, and in the process he stirred up a hornets’ nest, which led to his
suspension, disciplinary proceedings and an order of compulsory retirement,
which has, in our considered opinion, very rightly been set aside by the Division
Bench of Calcutta High Court.
The Railway Magistrate was accused of travelling in the Motorman’s cabin
on more occasions than one, though it seems incredible that an officer entitled
to an official car should opt to habitually travel by local train. In any case,
there is no evidence of his travel in a Motorman’s cabin except on the solitary
occasion on 5th May, 2007.
The Magistrate’s explanation for boarding the Motorman’s cabin was that,
he did so to make enquiries into the alleged illegal carriage of goods in the local
suburban train and consequential delay in running of the train, due to
unscheduled halts on the route, to offload those goods. The Magistrate
apparently perceived his action to be within the legitimate scope and ambit of
the powers of a Railway Magistrate, inter alia, under Section 190 (1)(c) of the
Criminal Procedure Code, to take cognizance of any offence, upon information
received from any persons other than a Police Officer, or upon his own
knowledge of commission of such offence.
It is not necessary for us to examine the scope of the powers of a
Magistrate under Section 190(1) of the Code of Criminal Procedure. The

question is whether the Magistrate’s understanding of his powers as Railway
Magistrate under Section 190(1)(c) read with the relevant provisions of the
Indian Railways Act was so absurd as to warrant his removal from service.
The report of the preliminary enquiry makes it apparent that what
triggered off the woes of this Magistrate was, agitation by a section of Railway
employees, irked by the detention of one of their peers, resulting in disruption
of train services for a few hours.
The Magistrate had requested the police to secure the presence of the
Motorman and the Guard in Court for questioning. Neither the Motorman nor
the Guard, nor any other person on the train in question was arrested. Nor is
there any evidence of the Magistrate ordering the arrest of any of them.
However, some railway employees started agitating, and one of the railway
employees was later detained for his misbehaviour in court. The filthy abusive
language that this railway employee allegedly used in Open Court against the
Magistrate is not repeated.
The High Court sprung into action against the Judicial Officer and
suspended him immediately, within a day or two. The Respondent was
suspended on the following grounds:-
(i) Travelling in the Motorman’s cabin from Lake Gardens to Sealdah
Railway Station on 5th May 2007 and travelling in similar fashion in the
past without having valid pass to enter the Motorman’s cabin.
(ii) Requiring reasons for the late running of trains and obtaining a
report on late running of the trains from the Motorman and the Guard of
the local train concerned.
(iii) Demonstration of the railway employees after the Driver and the

Guard were taken first to Thana and thereafter to the Court pursuant to
verbal order of the Magistrate.
(iv) Enquiry by the Registrar (Vigilance & Protocol) which prima facie
established that there had been violent demonstration by the Railway
employees resulting in total disruption of train services because of the
unauthorized activities on the part of the Magistrate.
(v) The manner in which the Magistrate had travelled in the Motorman’s
cabin without valid authority and pass and the way he had called for a
report about the late running of the trains despite having no such
authority, resulting in demonstration by the railway employees and
disruption of train services in the Sealdah Division till 3.45 p.m. on 5th
May, 2007 seemingly amounted to gross mis-conduct and misbehaviour
unbecoming of a Judicial Officer.
(vi) the High Court was prima facie satisfied that a Disciplinary
Proceeding be initiated against the Magistrate for such misconduct, and
that the Magistrate be placed under suspension with immediate effect.
A Memorandum of Charges was duly issued to the Magistrate, by the
Registrar General of the High Court, to which he submitted a reply. The crux of
his defence was that he had entered the Motorman’s cabin to make
investigation in exercise of his statutory powers as Magistrate. He denied
having entered the Motorman’s cabin forcibly. On the other hand it was his
case that the Motorman courteously allowed him into the cabin, when he
disclosed his identity, and cooperated with him, but made a volte-face when the
questions put to the Motorman became uncomfortable.
In his reply the Magistrate also categorically denied having committed any
misconduct. He denied having given any verbal instructions to the Police for
detention of the Motorman, Guard or any other person of the train, verbally or
otherwise.

The Magistrate in his reply vividly narrated the humiliation which he had
to go through in open Court when a railway employee who was not even on the
train hurled abuses at him in the filthiest language which this Court refrains
from repeating for the sake of decorum.
The order of suspension was revoked on 16th December, 2009, that is after
about 21/2 years, since the enquiry could not be completed. Almost a year after
the revocation of suspension, an Inquiring Authority was appointed on 14th
September 2010. Various witnesses were examined and a report was ultimately
submitted as late as on 7th January, 2013.
On 7th March, 2013, a copy of the Inquiry Report was furnished to the
Magistrate who duly submitted his comments thereto. On 23rd July 2013, the
Administrative Committee of the High Court decided to impose punishment of
compulsory retirement upon the Magistrate and on 30th July, 2013 the decision
of the Administrative Committee was ratified by the Full Court by circulation.
The decision of the Full Court was communicated to the Principal Secretary,
Judicial Department on 8th August, 2013 for issuance of necessary orders and on
29th August, 2013 the order of punishment was passed.
On 4th September 2013, the Respondent No.1 preferred an appeal under
Rule 16 of the West Bengal Judicial Service (Classification, Control and Appeal)
Rules, 2007. On receipt of the appeal, the Hon’ble Governor of West Bengal
forwarded the Memorandum of Appeal filed by the Respondent No.1 to the
same High Court for its opinion. On 15th January 2014, the opinion of the High
Court was forwarded to the Hon’ble Governor, who on 22nd January 2014
rejected the appeal, after which the Magistrate approached the High Court on

its judicial side under Article 226 of the Constitution of India.
The Registrar (Vigilance and Protocol) who conducted the preliminary
inquiry, on the basis of which action was initiated against the Magistrate as also
the Inquiring Authority embarked upon detailed examination of the scope and
ambit of the powers of a Railway Magistrate and/or the legality of his action of
making an enquiry himself by entering the Motorman’s cabin and requisitioning
the presence of the Motorman and the Guard in his Court. The Inquiring
Authority as also the Registrar (Vigilance and Protocol) misdirected themselves
by exceeding the scope of their task of making a factual inquiry, oblivious of the
established principle that an error of judgment in itself does not constitute
misconduct.
The learned Single Bench appears to have been swayed by the allegations
against the Magistrate which were not even substantiated in the Inquiry. There
is no evidence that the Magistrate forcibly boarded the Motorman’s cabin.
There is also no evidence of the Magistrate having given any instructions to the
Police to arrest the Motorman or the Guard of the train in question. The
demonstration may have been violent or spontaneous as observed by the Single
Judge, but was it justified, having regard to the facts proved? The Single Judge
missed the real issue which was whether there was any deliberate culpability on
the part of the Magistrate.
It appears from the judgment of the Single Judge that the Single Judge
was swayed by the fact that the appeal of the petitioner had been rejected. The
Single Judge completely overlooked the fact that there was, in effect and
substance, no appeal, for an appeal from the decision of the High Court was

rejected on the basis of the opinion of the same High Court.
The learned Single Judge dismissed the writ petition and upheld the order
of punishment imposed on the Magistrate observing that his act of unauthorized
entry into the Motorman’s cabin especially in the background of the fact that he
had done the same on previous occasions, his interrogation of the Motorman in
the name of the judicial inquiry and subsequent ordering of his detention/arrest
(which is incorrect factually), independently and collectively amounted to
offences which were patently illegal in nature.
The Learned Single Judge completely overlooked the fact that there was no
evidence of any unauthorized entry into the Motorman’s cabin on any previous
occasion. There was also no evidence that the Magistrate had ordered the
detention or arrest of the Motorman. The inquiry reveals that the Motorman
and the Guard were never in fact detained or arrested. The detention was of a
railway employee who had disrupted court proceedings and abused the
Magistrate in open Court using the filthiest language.
The learned Single Judge rightly observed that a Court can interfere with
an order of compulsory retirement when it fails the test of reasonableness. The
question is, whether an order of compulsory retirement can be held to clear the
test of reasonableness, when all that is established in the inquiry is that the
Magistrate had boarded the Motorman’s cabin on one solitary occasion to make
an inquiry, may be in excess of the powers conferred upon him. The illegality of
the action was discussed at length, but whether there was any dishonest or
wrongful intent, culpability or mala fide on the part of the Magistrate was totally
overlooked. There is no finding against the Magistrate of mala fides, any motive

or ill intent.
It is a disturbing trend nowadays that Judicial Officers are made
scapegoats and penalized whether by inconvenient transfers or otherwise,
whenever there are agitations/ demonstrations against the Judicial Officers
whether by Advocates or others, irrespective of the extent of the fault or
responsibility of the Judicial Officers concerned. In this case, it is patently clear
that action against the Judicial Magistrate had been prompted by the agitation
of Railway employees and disruption of services. No one examined whether
there was any justification for the disruption of services by the Railway
employees for requiring information from two of them or for the detention of a
third employee, a rank outsider to the investigation by the Railway Magistrate,
for hurling abuses at the Magistrate in open Court and threatening him.
It is well settled that an error of judgment does not per se constitute misconduct.
If the Railway Magistrate had acted bona fide but exercised his
powers erroneously based on his perception of the powers of a Judicial Railway
Magistrate, he could not have been held to have committed mis-conduct.
The entire enquiry proceedings appear to have been conducted under the
West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007
which, to say the least, immediately needs to be amended. Under Rule 11 of
the said Rules, no order imposing any of the penalties specified in Items (i) to
(v) of Rule 10 which includes compulsory retirement, is to be made except after
an enquiry in the manner provided in the Rules for which the Disciplinary
Authority is inter alia to draw up, or cause to be drawn up the substance of the
imputation of mis-conduct, or misbehaviour, into definite and distinct articles of

charge. Rule 2(c) defines Disciplinary Authority to mean the authority
competent under the said rules to impose penalty on a Judicial Officer. The
rules are completely silent as to which is the authority competent under the
rules to impose penalty on a Judicial Officer. It is doubtful whether the
Registrar General was at all the Competent Authority to draw up the charges. It
is also not clear if the High Court had examined and approved Memorandum of
Charges independently applying its mind. Be that as it may, Rule 16 and
particularly 16(3) is patently invalid, for reasons discussed in the judgment of
the Division Bench under Appeal.
The High Court is requested to consider recommending amendment of
the 2007 Rules, particularly Rule 16 which is ex facie invalid, in that, an appeal
made to the Governor has to be referred to the High Court for opinion. In other
words, the High Court takes a decision and an appeal therefrom must be
decided on the basis of the opinion of the same High Court, which is absurd.
With the aforesaid directions, the instant special leave petition is disposed
of.
………..………………………….J.
[INDIRA BANERJEE]
……..…………………………..J.
[B.R. GAVAI]
NEW DELHI;
NOVEMBER 15, 2019

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