1.Leave granted.
JUDGMENT2.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.
3.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 JUDGMENT 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.
4.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.”
5.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- JUDGMENT 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 JUDGMENTwomen 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. 6.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.
7.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.
8.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 JUDGMENT 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.
9.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, JUDGMENT collectively and individually, share that responsibility.
10.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 JUDGMENT
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 JUDGMENT
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 JUDGMENTof the High Court and had failed to
surrender herself within the time frame granted to
her.
11.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.
12.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 JUDGMENT 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)).
13.Explaining the scope of jurisdiction under Article 226 of
the Constitution, in State of Andhra Pradesh Vs. S. Sree
Rama Rao3, 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 JUDGMENT evidence.”
14.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.
3 (1964) 3 SCR 25
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.”
15.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 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.”
16.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)].
17.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.
18.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
JUDGMENTrecording 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 JUDGMENTin 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.
19.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 JUDGMENT the High Courts in the country.
20.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.
(D.K. JAIN)