REPORTABLE
|IN THE SUPREME COURT OF INDIA |
|CIVIL APPELLATE JURISDICTION |
|CIVIL APPEAL NO. 4553 0F 2012 |
|(Arising Out of S.L.P. (C) No. 1430 OF 2011) |
|REGISTRAR GENERAL, PATNA HIGH COURT |— |APPELLANT |
| |
|VERSUS |
|PANDEY GAJENDRA PRASAD & ORS. |— |RESPONDENTS |
JUDGMENT
D.K. JAIN, J.:
Leave granted.
This appeal, by special leave, is preferred by the Patna High Court,
through its Registrar General, against the judgment and order dated 21st
May, 2010, rendered by a Division Bench of the High Court in the writ
petition filed by respondent no.1. In the said writ petition the first
respondent had challenged the decision of the Full Court recommending his
removal from service as a Railway Judicial Magistrate. By the impugned
judgment, the notification/communication dismissing him from service has
been set aside with a consequential declaration that the said respondent
shall be reinstated and paid 40% of his back wages as compensation. He has
also been granted liberty to make representation to the High Court
regarding the balance 60% of his back wages.
The first respondent in this appeal was appointed in Bihar Judicial Service
on 29th March 1986, in the cadre of Munsif. In October, 1999, he
was functioning as a Railway Judicial Magistrate, Barauni Dist., Begusarai.
On receipt of some reports, alleging misconduct on the part of the said
respondent, the District and Sessions Judge conducted a preliminary
inquiry. Upon consideration of his report, the Standing Committee,
consisting of five Judges of the High Court, issued a show cause notice to
respondent no. 1. Dissatisfied with his reply, the Standing Committee
recommended initiation of departmental proceedings against him and to place
him under suspension. The said recommendation was subsequently approved by
the Full Court.
The Enquiry Officer, framed four charges against the respondent. However,
in his final report, he found the following two charges as proved:
“Charge - II
You Sri Pandey Gajendra Prasad while functioning as Railway Judicial
Magistrate, Barauni granted bail to accused Ajay Kumar Yadav on
26.11.99 in Rail P.S. Case No.64/99 (G.R. No.2400/99) initially
registered under section 47(A) of the Excise Act for illegal
possession of several packets of Ganja not-with-standing the fact that
recovery of Ganja falls under N.D.P.S. Act and even before the release
of Ajay Kumar Yadav a petition was filed on behalf of prosecution on
4.12.99, to add section 17, 18 and 22 of N.D.P.S. Act, but instead of
passing any order on the said petition you entertained bail
application of another accused namely Ram Kishore Kusbaha and on
9.12.99 allowed him bail and thereafter on 16.12.99 accepted bail
bonds of both the accused persons and released them on bail.
The grant of bail in N.D.P.S. Act by a Judicial Magistrate is without
jurisdiction raising the presumption of extraneous consideration.
Your aforesaid act of granting bail to accused under N.D.P.S. Act
indicates that the bail was granted for consideration other than
Judicial which tantamount to Judicial indiscipline, gross misconduct,
improper exercise of Judicial discretion and a conduct unbecoming of a
Judicial Officer.
Charge – III
You Sri Pandey Gajendra Prasad while functioning as Railway Judicial
Magistrate, Barauni granted bail to one Tara Devi alias Haseena
Khatoon in Barauni Rail P.S. Case No.76/98 (G.R. No.2428/98) not-with-
standing the fact that her anticipatory bail application bearing Cr.
Misc. No.7301/99, which was preferred by her against rejection of her
anticipatory bail by the Sessions Judge, Begusarai vide order dated
11.12.99 in A.B.A. No.224/98, was dismissed as withdrawn by this
Hon’ble Court on 30.4.99.
The aforesaid act of your granting bail to the said accused being
member of a gang of lifters engaged in railway thefts, who committed
crime within Barauni Junction and adjoining station and was thus named
accused in several cases indicates that the bail was granted for
consideration other than judicial which tantamount to Judicial
indiscipline, gross misconduct, improper exercise of Judicial
discretion and a conduct unbecoming of a Judicial Officer.”
The Standing Committee accepted the enquiry report and recommended
imposition of punishment of dismissal from service on the first respondent.
As aforesaid, the recommendation was approved by the Full Court and
accepted by the Governor. Consequently, vide a Notification dated 19th
June, 2006, issued by the Govt. of Bihar; which was communicated to him on
24th June, 2006; the first respondent was dismissed from service.
Aggrieved thereby, he filed a writ petition in the High Court. Quashing
the order of dismissal, the Division Bench of the High Court commented on
the afore-extracted charges as follows:
In Re: Charge II:
“Undoubtedly, the investigating officer had filed an application on
04.12.1999 to add Sections 17, 18, 22 of the N.D.P.S. Act which the
petitioner had directed to be kept on record. In a criminal trial
various kinds of petitions are filed which are kept on record. Some
are pressed, order passed, others simply remain on record and are
never pressed. If the prosecution was so sanguine for the need to
prosecute under the N.D.P.S. Act, it was for the Assistant Public
Prosecutor to take steps in accordance with law by pressing that
application. The petitioner as a Judge was not expected to become the
prosecutor also as that was not his role. If no one pressed that
application, he was under no compulsion to suo-motu treat it as a case
under N.D.P.S. Act to deny liberty of the citizen. The aspect of the
petitioner was dealing with the liberty of the citizen in custody
based on prosecution materials laid before him when he exercised his
judicial discretion, is a matter which has a foremost bearing in our
mind. To us, it is primarily for the prosecution to answer that if
the F.I.R. was lodged on 02.11.1999, why was it so lax in a matter as
serious under the N.D.P.S. Act and why it acted so casually and took
as long as 08.02.2000 to submit final form under N.D.P.S. Act. The
departmental enquiry report proceeds on a wrong presumption at
paragraph 22 that in the facts the petitioner granted bail without
having jurisdiction to do so as a Magistrate under the N.D.P.S. Act.
If he granted bail on 16.12.1999 and the N.D.P.S. Act came to be added
on 08.02.2000, can it be simply logically concluded that it was a
deliberate mistake in exercise of judicial discretion unbecoming of a
judicial officer based on the records as they stood on the date when
he was considering liberty of the citizen.
Paragraph 22 of the report itself states that his error lay in
not keeping in mind that a petition was pending for conversion to the
N.D.P.S. Act to conclude that he committed a grave error in law by
granting bail in a case of allegation of recovery of Ganja and a case
under the N.D.P.S. Act. It has to be kept in mind that even in the
original allegation it was “Ganja like substance” and not that it was
ganja”
In Re: Charge III:
“In so far as charge No.3 is concerned, we have absolutely no
hesitation in holding that the petitioner acted in terms of his
statutory powers under Section 437(1) proviso Cr.P.C. which makes an
exception in favour of women. The women accused was granted bail
after 15 days of custody. She was not named and there was no recovery
from her in an allegation of luggage lifting on the platform. If the
male co accused had been granted bail after seven months of custody,
the distinction to us being too apparent, can it be said that the
exercise of discretion to grant bail to a women in exercise of powers
under the Code of Criminal Procedure amounted to conduct unbecoming of
a judicial officer and a gross misconduct only because she had
surrendered beyond time observed by the High Court.”
On the first respondent’s general reputation, the High Court thus observed:
“We have examined the judicial records of the officer. In a case of
grant of bail for extraneous consideration, there may not be direct
and tangible evidence available, therefore impressions have to be
gathered from the surrounding circumstances. We find it difficult to
arrive at any such conclusion against the petitioner. However, in
order to fortify our thinking, we also proceed to examine his annual
confidential report more particularly with regard to the column for
judicial reputation for honesty and integrity. The consistent remarks
are that “his reputation is good”, “yes”, “judicial reputation good”,
“yes”.”
Hence the present appeal by the High Court. The State of Bihar and its two
functionaries have been impleaded as respondent nos.2 to 4 respectively.
Mr. Pravin H. Parekh, learned senior counsel appearing for the appellant,
submitted that the case of first respondent having been examined first by
the Standing Committee, constituted by the Chief Justice and then approved
by the Full Court after due deliberations, the Division Bench of the High
Court ought to have refrained from interfering with the order of
punishment, particularly when the question of malafides on the part of the
Full Court was not raised by the first respondent. It was argued that the
Division Bench has misdirected itself in examining the findings of the
enquiry officer as if it was sitting in appeal and substituted its own
findings and opinion thereon, which is beyond the purview of judicial
review under Article 226 of the Constitution. In support, reliance was
placed on the decision of this Court in B.C. Chaturvedi Vs. Union of India
& Ors.[1], wherein it was held that where the findings of the disciplinary
or appellate authority are based on some evidence, the court cannot re-
appreciate the evidence and substitute them with its own findings. It was
stressed that the judicial service not being a service in the sense of an
employment, as it is commonly understood; as the judicial officers exercise
sovereign judicial function; the standard principles of judicial review of
an administrative action cannot be applied for examining the conduct of a
judicial officer.
Per Contra, Mr. Subhro Sanyal, learned counsel appearing on behalf of the
first respondent, supporting the impugned judgment submitted that the
charges framed against the first respondent included those cases wherein
the judicial discretion vested in a judicial officer had been exercised and
the exercise of such power by the first respondent could not be said to be
an act tantamounting to judicial indiscipline or misconduct. It was
submitted that in the absence of any adverse comments in the Annual
Confidential Reports (“ACR”), the High Court was justified in setting aside
the order of punishment of dismissal of the first respondent from service.
Having considered the matter in the light of the entire material placed
before us by the learned counsel, including the personal file of the first
respondent and the settled position of law on the point, we are of the
opinion that the Division Bench exceeded its jurisdiction by interfering
with the unanimous decision of the High Court on the administrative side.
Article 235 of the Constitution of India not only vests total and absolute
control over the subordinate courts in the High Courts but also enjoins a
constitutional duty upon them to keep a constant vigil on the day to day
functioning of these courts. There is no gainsaying that while it is
imperative for the High Court to protect honest and upright judicial
officers against motivated and concocted allegations, it is equally
necessary for the High Court not to ignore or condone any dishonest deed on
the part of any judicial officer. It needs little emphasis that the
subordinate judiciary is the kingpin in the hierarchical system of
administration of justice. It is the trial judge, who comes in contact
with the litigant during the day to day proceedings in the court and,
therefore, a heavy responsibility lies on him to build a solemn unpolluted
atmosphere in the dispensation of justice which is an essential and
inevitable feature in a civilized democratic society. In High Court of
Judicature at Bombay Vs. Shashikant S. Patil & Anr.[2], highlighting a
marked and significant difference between a judicial service and other
services, speaking for a bench of three Judges, K.T. Thomas, J. observed
as follows:
“23. The Judges, at whatever level they may be, represent the State
and its authority, unlike the bureaucracy or the members of the other
service. Judicial service is not merely an employment nor the Judges
merely employees. They exercise sovereign judicial power. They are
holders of public offices of great trust and responsibility. If a
judicial officer “tips the scales of justice its rippling effect would
be disastrous and deleterious”. A dishonest judicial personage is an
oxymoron.”
In short, it is the constitutional mandate that every High Court must
ensure that the subordinate judiciary functions within its domain and
administers justice according to law, uninfluenced by any extraneous
considerations. The members of the subordinate judiciary are not only
under the control but also under the care and custody of the High Court.
Undoubtedly, all the Judges of the High Court, collectively and
individually, share that responsibility.
Bearing in mind the scope of Article 235 of the Constitution, we may now
advert to the facts at hand. As aforesaid, according to the report of the
enquiry officer only charges nos.II and III, as extracted above, stood
proved against respondent no.1. It is manifest that in both cases, the
charge is related to the grant of bail by respondent no.1. While it is true
and relevant to note that ‘grant of bail’ is an exercise of judicial
discretion vested in a judicial officer to be exercised depending on the
facts and circumstances before him, yet it is equally important that
exercise of that discretion must be judicious having regard to all relevant
facts and circumstances and not as a matter of course. In the instant
case, the findings of the enquiry officer in respect of the two charges
were:
i) In Re: Charge No. II - That respondent no.1 granted bail to the
accused persons in a case falling under the ambit of the N.D.P.S.
Act. The recovery of ganja of any quantity falls within the purview
of the N.D.P.S. Act triable by a Special Court. As a result, no
sooner than 4th December 1999, when an application was filed by the
prosecution before respondent no.1 to add certain provisions of the
N.D.P.S. Act in that particular case, he was divested of the
jurisdiction to deal with the case and thus, ought to have
transferred the same to a court of competent jurisdiction, which
was not done. It is pertinent to note here that in the reply to the
show cause notice issued to him, the first respondent acquiesced
that he was aware of the application filed to bring the case within
the purview of the N.D.P.S. Act. However, he still chose to
entertain the bail application of the second accused on 8th
December, 1999, which clearly implies that he voluntarily exercised
his discretion in granting bail in a case which was in the realm of
the N.D.P.S. Act and wherein he lacked jurisdiction to deal with
the matter.
ii) In Re : Charge No. III - That the first respondent granted bail to
Tara Devi alias Haseena Khatoon, who was a member of a gang of
lifters engaged in railway thefts. Admittedly, anticipatory bail
application preferred by her was rejected by the Sessions Judge,
Begusarai and was dismissed as withdrawn by the High Court vide
order dated 30th April, 1999, with an observation that if the
accused surrenders within four weeks, her bail application would be
considered on its own merit. It is pertinent to note that on 6th
March, 1999, she was declared an absconder and a permanent warrant
of her arrest was also issued by respondent no.1 himself. However,
when she was arrested by the police in connection with another case
(being Barauni Rail P.S. Case No. 51/2000) she was granted bail by
respondent no.1, on the ground that being a woman she was entitled
to the benefit of the exception under Proviso to Section 437(1) of
the Code of Criminal Procedure, 1973. It is therefore clear that
respondent no.1, failed to take into consideration the fact that
accused was a proclaimed absconder, had disobeyed the direction of
the High Court and had failed to surrender herself within the time
frame granted to her.
According to the Division Bench, both the orders by the first respondent
being purely discretionary in terms of his statutory powers, did not
warrant any disciplinary action against him on the ground of judicial
indiscretion or misconduct. We are constrained to observe that the
Division Bench has failed to bear in mind the parameters laid down in a
catena of decisions of this Court while dealing with the collective
decision of the Full Court on the administrative side. It is evident that
the Division Bench dealt with the matter as if it was exercising appellate
powers over the decision of a subordinate court, granting or refusing bail,
and in the process, overstepped its jurisdiction under Article 226 of the
Constitution.
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 or if the decision of the authority
is vitiated by consideration 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. (See:
Shashikant S. Patil & Anr. (supra)).
Explaining the scope of jurisdiction under Article 226 of the
Constitution, in State of Andhra Pradesh Vs. S. Sree Rama Rao[3], this
Court made the following observations:
“The High Court is not constituted in a proceeding under Article 226
of the Constitution a court of appeal over the decision of the
authorities holding a departmental enquiry against a public servant:
it is concerned to determine whether the enquiry is held by an
authority competent in that behalf, and according to the procedure
prescribed in that behalf, and whether the rules of natural justice
are not violated. Where there is some evidence, which the authority
entrusted with the duty to hold the enquiry has accepted and which
evidence may reasonably support the conclusion that the delinquent
officer is guilty of the charge, it is not the function of the High
Court in a petition for a writ under Article 226 to review the
evidence and to arrive at an independent finding on the evidence.”
Elaborating on the scope of judicial review of an assessment of the
conduct of a judicial officer by a Committee, approved by the Full Court,
in Syed T.A. Naqshbandi & Ors. Vs. State of Jammu & Kashmir & Ors.[4] this
Court noted as follows:
“As has often been reiterated by this Court, judicial review is
permissible only to the extent of finding whether the process in
reaching the decision has been observed correctly and not the decision
itself, as such. Critical or independent analysis or appraisal of the
materials by the courts exercising powers of judicial review unlike
the case of an appellate court, would neither be permissible nor
conducive to the interests of either the officers concerned or the
system and institutions of administration of justice with which we are
concerned in this case, by going into the correctness as such of ACRs
or the assessment made by the Committee and approval accorded by the
Full Court of the High Court.”
In Rajendra Singh Verma (Dead) Through LRs. & Ors. Vs. Lieutenant
Governor (NCT of Delhi) & Ors.[5], reiterating the principle laid down in
Shashikant S. Patil & Anr. (supra), this Court observed as follows:
“In case where the Full Court of the High Court recommends compulsory
retirement of an officer, the High Court on the judicial side has to
exercise great caution and circumspection in setting aside that order
because it is a complement of all the Judges of the High Court who go
into the question and it is possible that in all cases evidence would
not be forthcoming about integrity doubtful of a judicial officer.”
It was further observed that:
“If that authority bona fide forms an opinion that the integrity of a
particular officer is doubtful, the correctness of that opinion cannot
be challenged before courts. When such a constitutional function is
exercised on the administrative side of the High Court, any
[pic]judicial review thereon should be made only with great care and
circumspection and it must be confined strictly to the parameters set
by this Court in several reported decisions. When the appropriate
authority forms bona fide opinion that compulsory retirement of a
judicial officer is in public interest, the writ court under Article
226 or this Court under Article 32 would not interfere with the
order.”
In the present case, the recommendation of the Standing Committee to
dismiss the first respondent from service was based on the findings in the
enquiry report submitted by the enquiry officer pursuant to the
departmental enquiry; his reply to the show cause notice; his ACR and other
materials placed before it. The recommendation of the Standing Committee
was approved and ratified by the Full Court. There is nothing on record to
even remotely suggest that the evaluation made, firstly by the Standing
Committee and then by the Full Court, was so arbitrary, capricious or so
irrational so as to shock the conscience of the Division Bench to justify
its interference with the unanimous opinion of the Full Court. As regards
the observation of the Division Bench on the reputation of the first
respondent based on his ACRs, it would suffice to note that apart from the
fact that an ACR does not necessarily project the overall profile of a
judicial officer, the entire personal file of the respondent was before the
Full Court when a conscious unanimous decision was taken to award the
punishment of his dismissal from service. It is also well settled that in
cases of such assessment, evaluation and formulation of opinion, a vast
range of multiple factors play a vital and important role and no single
factor should be allowed to be blown out of proportion either to decry or
deify issues to be resolved or claims sought to be considered or asserted.
In the very nature of such things, it would be difficult, rather almost
impossible to subject such an exercise undertaken by the Full Court, to
judicial review, save and except in an extra-ordinary case when the court
is convinced that some exceptional thing which ought not to have taken
place has really happened and not merely because there could be another
possible view or there is some grievance with the exercise undertaken by
the Committee/Full Court. [(See: Syed T.A. Naqshbandi (supra)].
Having regard to the material on record, it cannot be said that the
evaluation of the conduct of the first respondent by the Standing Committee
and the Full Court was so arbitrary, capricious or irrational that it
warranted interference by the Division Bench. Thus, the inevitable
conclusion is that the Division Bench clearly exceeded its jurisdiction by
interfering with the decision of the Full Court.
However, before parting with the judgment, we deem it necessary to make a
mention about the recording of the ACRs of judicial officers. We feel
that the present system of recording the ACRs leaves much to be desired
and needs to be revamped. Experience has shown that it is deficient in
several ways, being not comprehensive enough to truly reflect the level of
work, conduct and performance of each individual on one hand and unable to
check subjectivity on the other. This undoubtedly breeds discontent in a
section of the judicial service besides eroding proper and effective
superintendence and control of the High Court over subordinate judiciary.
The process of evaluation of a judicial officer is intended to contain a
balanced information about his performance during the entire evaluation
period, but it has been noticed that many a times, the ACRs are recorded
casually in a hurry after a long lapse of time (in some cases even after
the expiry of one year from the period to which it relates), indicating
only the grading in the final column. It needs no elaboration that such
hurried assessment cannot but, be either on the basis of the
assessment/grading of the preceding year(s) or on personal subjective
views of the Inspecting Judge(s), which is unfair to the judicial officer.
Undoubtedly, ACRs play a vital and significant role in the assessment,
evaluation and formulation of opinion on the profile of a judicial
officer, particularly, in matters relating to disciplinary action against
a judicial officer. The ACRs of such officer hold supreme importance in
ascertaining his conduct, and therefore, the same have to be reported
carefully with due diligence and caution. We feel that there is an urgent
need for reforms on this subject, not only to bring about uniformity but
also to infuse objectivity and standardisation.
In Bishwanath Prasad Singh Vs. State of Bihar & Ors.[6] and High Court of
Punjab & Haryana, Through R.G. Vs. Ishwar Chand Jain & Anr.[7],
highlighting the importance of ACRs, this Court had observed that the
power to make such entries, which have the potential for shaping the
future career of a subordinate officer, casts an obligation on the High
Courts to keep a watch and vigil over the performance of the members of
the subordinate judiciary. This Court also stressed on the need for the
assessment to be made as an ongoing process continued round the year and
the record to be made in an objective manner. We are constrained to note
that these observations have not yet engaged the attention of most of the
High Courts in the country.
In the final analysis, for the aforesaid reasons, we allow the appeal, set
aside the impugned judgment of the Division Bench and uphold the validity
of Notification dated 19th June 2006, dismissing the first respondent from
judicial service. There will however, be no order as to costs.
| |………………………………….J. |
| |(D.K. JAIN) |
| |
| |
| | ..………..……………………….J. |
| |(ANIL R. DAVE) |
| | |
|NEW DELHI; | |
|MAY 11, 2012. | |
ARS
-----------------------
[1] (1995) 6 SCC 749
[2] (2000) 1 SCC 416
[3] (1964) 3 SCR 25
[4] (2003) 9 SCC 592
[5] (2011) 10 SCC 1
[6] (2001) 2 SCC 305
[7] (1999) 4 SCC 579
