Partly allowed

Rajendra Prasad Bharti v. State of U.P Thru.Addl.Chief Secy. Deptt.of Appointment andANR

Allahabad HC21 Feb 2023WRIA/15770/2019

Case brief

AI extract

What is this about?

A civil judge was removed from service for passing contradictory orders and maintaining two order sheets. The High Court quashed the removal as the enquiry officer relied on extraneous material and hearsay evidence, ignored defence witnesses, and acted perversely. The petitioner was reinstated without back wages.

What did the court decide?

The order dated 02.04.2019 removing the petitioner from the post of Civil Judge (Junior Division) is quashed. The petitioner stands reinstated in service on that post. Back wages are denied, but all o

Rajendra Prasad Bharti Vs State of U.P… — Service and Employment | Allahabad HC (2023)

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AFR Judgment Reserved on: 12.01.2023 Judgment Delivered on: 21.02.2023

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Court No. - 1

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Case :- WRIT - A No. - 15770 of 2019 Petitioner :- Rajendra Prasad Bharti Respondent :- State Of U.P Thru.Addl.Chief Secy. Deptt.Of Appointment Andanr

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Counsel for Petitioner :- Varadraj Shreedutt Ojha,Mohd. Anas Khan Counsel for Respondent :- C.S.C.,Gaurav Mehrotra

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Hon’ble Ramesh Sinha J. Hon’ble Subhash Vidyarthi J.

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(Delivered by Hon’ble Subhash Vidyarthi J.)

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1. Heard Sri Sandeep Dixit, the learned Senior Advocate assisted by Sri Varadraj Shreedutt Ojha Advocate, the learned counsel for the petitioner and Sri Gaurav Mehrotra Advocate assisted by Sri Utsav Misra and Ms. Rani Singh Advocates for the opposite party no. 2 High Court of Judicature at Allahabad.

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2. By means of the present Writ Petition, the petitioner has challenged the order dated 02.04.2019 whereby he has been removed from the post of Civil Judge (Junior Division). He has also challenged the annual confidential report for the year 2011-12, the order dated 29.01.2013 passed by the Administrative Judge rejecting the petitioner’s representation against the adverse remarks in his annual confidential report for the year 2011-12 whereby it was proposed that a departmental enquiry be conducted against the petitioner and the recommendations dated 07.12.2016 of a Committee of three Hon’ble Judges of this Court rejecting the petitioner’s representation dated 05.11.2015 against the adverse remarks, as also the resolutions dated 11.01.2017 passed by the Hon’ble Administrative Committee accepting the recommendations of the three member committee and the resolution dated 12.11.2017 passed by the Hon’ble Administrative Committee directing the matter to be placed before the Full Court.

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Page 1 of 26

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3. Briefly stated, facts of the case are that the petitioner was appointed as a Civil Judge (Junior Division) on 26.05.2006. The petitioner remained posted as Additional Civil Judge (Junior Division) in the outlying Court at Sambhal in District Moradabad and thereafter he was transferred to Mirzapur.

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4. On 25.11.2011, while the petitioner was posted as Civil Judge (Junior Division) Sambhal, one Sri. Mahesh Pal Singh Yadav Advocate gave a complaint to the District Judge Moradabad, leveling the following allegations against the petitioner: -

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“माननीय tuin U;k;k/kh’k egksn;]

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tuin& eqjknkcknA

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fo”k; %& U;kf;d vf/kdkjh lEHky Jh jktsUnz izlkn Hkkjrh th dh nks”kiw.kZ dk;Zizk.kh ds lEcU/k esa &

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egksn;]

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lfou; fuosnu gS fd U;kf;d vf/kdkjh Jh jktsUnz izlkn Hkkjrh egksn; dh dk;Z iz.kkyh ds lEcU/k esa fuEufyf[kr fuosnu djuk gS &

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1& ;g fd Jh jktsUnz izlkn Hkkjrh U;kf;d vf/kdkjh egksn; U;k;ky; esa izfrfnu nks cts fnu cSBrs gS vkSj dsoy vtsZUV ekeys tSls& csy fjekaM o nkos dks tks mlh fnu nk;j gksrs gS] ij gh lquokbZ gksrh gS vkSj dksbZ Qkby ij u rks dksbZ lquokbZ gksrh gS] uk gh dksbZ vkns’k gksrk gSA

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2& ;g fd mDr lHkh vtekurh; o xEHkhj izd`fr ds vijk/kks esa mDr egksn; lacf/kr i{k ls gelkt gksdj mlh fnu tekur dk vkns’k ns nrs gSA feyus ij [kkfjt dj nsrs gSA

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3& ;g fd mDr vf/kdkjh egksn; u;s nkoks esa /kujkf’k ysdj gh LFkxukns’k nsrs gS vU;Fkk flQZ uksfVl gh tkjh djrs gSA

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4& ;g fd 156 ¼3½ lh0vkj0ih0lh0 ds izk0i= dks Lohdkj djus gsrq 2000@:i;s u nsus ij [kkfjt dj nsrs gSA ,sls gh dksVZ u01 esa ihBklhu jgrs gq;s mDr vf/kdkjh egksn; us izdh.kZ okn la0 58@11 jkefd’kksj cuke jkefuokl izkFkhZ }kjk iSls uk nsus ij izk0i= 15-4-11 dks [kkfjt dj fn;k okngw oknh }kjk mDr vf/kdkjh dh vuqfpr ekax iwjh djus ij mldh QnsZgdke fudky dj nwljh QnsZgdke yxkdj izk0 i= mlh fnu 15-4-11 dks Lohdkj dj fn;k x;kA izek.k Lo:i Nk;kizfr layXu gSA

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5& ;g fd mDr Jh jktsUnz izlkn Hkkjrh }kjk U;k;ky; ds lHkh U;kf;d O;oLFkk [kjkc dj jgh gSA dksbZ Hkh dk;Z cxSj iSls fy;s mDr vf/kdkjh egksn; ugh dj jgs gSA okndkfj;ks dk mDr dk;Ziz.kkyh ls fo’okl lekIr gksrk tk jgk gSA mDr vf/kdkjh egksn; dh dk;Ziz.kkyh ls okndkfj;ks dk vfgr gks jgk gSA vkSj U;k;ky; dh xfjek धूमि�ल gks jgh gS vkSj bZekunkj okndkjh U;k; ls oafpr gks jgs gSA

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6& ;g fd Jh jktsUnz izlkn Hkkjrh egksn; tc ls lEHky ls LFkkukUrfjr vk;s gS] Hkz”Vkpkj dks c<+kok fn;k gSA buds dk;Zdky dks fdlh Hkh ekg dh QkStnkjh fjek.M i=koyh Fkkuk& g;kruxj o lEHky x<+h dks ryc dj yh tk; rFkk u;s nhokuh oknh okn Hkh ryc dj fy;s tk;A Jheku th ds le{k mDr lHkh rF;ksa dh lPpkbZ lkeus tk;sxhA

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U;k;ky; dh lkQ lqFkjh o xfjek cuk;s j[kus ds fy;s vki ls djc) izkFkZuk gS fd mDr Jh jktsUnz izlkn Hkkjrh U;kf;d vf/kdkjh egksn; lEHky nks”kiw.kZ dk;kZs dh tkap dj muds f[kykQ dk;Zokgh dh tk;sA

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Jheku th dh vfr d`ik gksxhA

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25@11@11

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IzkkFkhZ

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egs’k iky flag ;kno ,M0 flfoy dksVZ] lEHkyA ”

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5. In the order dated 01.12.2011 passed in Writ B No. 69275 of 2011, this Court had observed that in Suit No. 1426 of 2011 the petitioner had passed an interim order dated 19.11.2011 directing the parties to maintain status quo whereas he passed an order dated 26.11.2011 in Suit No. 1478 of 2011 issuing an interim mandate to implement an award, which ran contrary to the earlier order dated 19.11.2011. This Court directed the Registrar General to call for an explanation from the petitioner. On 02.01.2012, the petitioner submitted an explanation stating that in the subsequent suit, different pleadings were made and different evidence had been produced, which had led to passing of the order dated 26.11.2011.

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6. On 15.12.2011 Sri. Mahesh Pal Singh Yadav Advocate sent a complaint to the Hon’ble Chief Justice, leveling the following allegations against the petitioner: -

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“माननीय eq[; U;k;k/kh’k egksn;]

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mPp U;k;ky; bykgkckn

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fo”k; %& U;kf;d vf/kdkjh lEHky Jh jktsUnz izlkn Hkkjrh th dh nks”kiw.kZ dk;Zizk.kh ds lEcU/k esa &

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egksn;]

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lfou; fuosnu gS fd U;kf;d vf/kdkjh Jh jktsUnz izlkn Hkkjrh egksn; dh dk;Ziz.kkyh ds lEcU/k esa fuEufyf[kr fuosnu djuk gS &

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1& ;g fd Jh jktsUnz izlkn Hkkjrh U;kf;d vf/kdkjh egksn; U;k;ky; esa izfrfnu 2 cts fnu esa cSBrs gS vkSj dsoy vtsZUV ekeys tSls& csy fjekaM o nkos dks tks mlh fnu nk;j gksrs gS] ij gh lquokbZ gksrh gS vkSj dksbZ jsxqyj Qkby ij u rks dksbZ lquokbZ gksrh gS] uk gh dksbZ vkns’k gksrk gSA

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2& ;g fd lHkh vtekurh; o xEHkhj izd`fr ds vijk/kks esa mDr egksn; lEcfU/kr i{k ls voS/k /kujkf’k ysdj mlh fnu tekur dk vkns’k nsrs gS u feyus ij [kkfjt dj nsrs gSA

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3& ;g fd mDr vf/kdkjh egksn; u;s nkoks esa /kujkf’k ysdj Hkh LFkxu vkns’k nsrs gS vU;Fkk flQZ uksfVl gh tkjh djrs gSA

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Page 3 of 26

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4& ;g fd 156 ¼3½ lh0vkj0ih0lh0 ds izk0i= dks Lohdkj djus gsrq 2000@:i;s ysrs gS u nsus ij [kkfjt dj nsrs gSA ,sls gh dksVZ u01 esa ihBklhu jgrs gq;s mRrjkf/ kdkjh egksn; us izdh.kZ okn la0 58@11 jkefd’kksj cuke jkefuokl izkFkhZ }kjk iSls uk nsus ij izk0i= 15-4-11 dks [kkfjt dj fn;k okngw oknh }kjk mDr vf/kdkjh dh vuqfpr ls lh/ks lEidZ djus o mDr vf/kdkjh vuqfpr ekax iwjh djus ij mDr izdhZ.k okn dh QnZs dke fudky dj nwljh QnsZgdke yxkdj izk0 i= mlh fnu 15-4-11 dks Lohdkj dj fn;k x;kA izek.k Lo:i Nk;kizfr layXu gSA

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5& ;g fd mDr Jh jktsUnz izlkn Hkkjrh }kjk U;k;ky; ds lHkh U;kf;d O;oLFkk [kjkc dj j[kh gS dksbZ Hkh dk;Z cxSj lqfo/kk ’kqYd fy;s mDr vf/kdkjh egksn; ugh dj jgs gSA okndkfj;ks dk mDr dk;Ziz.kkyh ls fo’okl lekIr gksrk tk jgk gSA mDr vf/kdkjh egksn; dh dk;Ziz.kkyh ls okndkfj;ksa dk vfgr gks jgk gSA vkSj U;k;ky; dh xfjek धूमि�ल gks jgk gS vkSj bZekunkj okndkjh U;k; ls oafpr gks jgs gSA

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6& ;g fd ihBklhu egksn; tc ls lEHky esa LFkkukUrfjr gksdj कार्य�भार lEHkkyk gS Hkz”Vkpkj dks c<+kok fn;k gSA buds dk;Zdky dh fdlh Hkh ekg dh QkStnkjh fjekaM i=koyh Fkkuk g;kruxj o lEHky] o Fkkuk gtjr uxj x<h dh ryc dj yh tk;s rFkk u;s nhokuh okn dh i=kofy;ka Hkh ryc Qjek yh tk;s ftlls mDr ihBklhu vf/kdkjh dh dk;Z’kSyh dh Li”Vrk Jheku th ds le{k mtkxj gks tk;sxhA

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7& ;g fd bruk gh ugha nhokuh oknksa esa i{kdkjks dh lgefr ls gq, lqysukesa dks Lohdkj djus ds ckn dh lqysgukesa okn esa dksbZ vfUre fu.kZ; u ysdj vuqfpr ykHk izkfIr gsrq cjkcj muesa rkjh[ksa fu;r djrs jgrs gSa ftlls okndkfj;ksa dks U;k; ugha feyrkA

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8& ;g fd vfHk;qDr iquhr R;kxh dh U;k;ky; esa mifLFkfr ds cxSaj gh mDr vf/kdkjh }kjk tekur dk vkns’k ikfjr dj fn;k x;k vkSj U;k;ky; ds vkns’k dk ikyu u djus ds ckotwn vfHk;qDr dh fjgkbZ vkns’k ns fn;k x;kA vfHk;qDr ds futh cU/ki= ij gLrk{kj ugh djk;s x;s eq0v0la0 119@11 gSA

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U;k;ky; dh lkQ lqFkjh Nfo o xfjek cuk;s j[kus ds fy;s vki ls djc) izkFkZuk gS fd mDr Jh jktsUnz izlkn Hkkjrh U;k;f;d vf/kdkjh egksn; lEHky nks”kiw.kZ dk;kZs dh tkap dj muds f[kykQ dk;Zokgh dh tk;sA Jheku~ th dh vfr d`ik gksxhA

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15@12@2011

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IzkkFkhZ egs’k iky flag ;kno ,MoksdsV

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flfoy dksVZ] lEHkyA”

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7. The District Judge had awarded adverse entries in the annual confidential report of the petitioner for the year 2011-12 withholding his integrity on the basis of allegations leveled in the aforesaid complaint.

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8. A representation given by the petitioner against the adverse entries awarded to him was rejected by the Hon’ble Administrative Judge by means of an order dated 29.01.2013. The Petitioner gave a representation dated 05.11.2015, which was rejected by a Committee comprising of three Hon’ble Judges.

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9. On 21.01.2012, the petitioner gave a reply to the District Judge stating that the allegations were absolutely false. Regarding Case No.

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58/2011, he stated that the application had been rejected for want of prosecution but thereafter the Advocate appeared and made a request, whereupon the application was accepted, and a direction was issued to register a case and investigate. The petitioner stated that the order was not passed due to any vested interest, but in the interest of the litigant after his Advocate appeared and made an oral request.

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10. In furtherance of the complaint dated 15.12.2011 that had been sent to the Hon’ble Chief Justice, the Administrative Judge called for a report from the District Judge. The District Judge got an enquiry conducted through the Enquiry Officer Sri. Sanjay Kumar Verma, H.J.S., who submitted a report on 02.07.2016 stating that he had conducted an enquiry and had recorded the statement of the complainant Sri. Mahesh Pal Singh Yadav Advocate, who, besides leveling some general and vague allegations, had stated that the petitioner had dismissed Misc. Case No. 58/2011 titled Ram Kishore versus Ram Nivas, under Section 156 (3) Cr.P.C. as he did not get any money but the application was subsequently accepted when the applicant contacted the petitioner directly and fulfilled his illegal demand. The complainant further stated that the petitioner had granted bail to accused Puneet Tyagi in Case Crime No. 119/2011 under Sections 498 A, 452, 323, 324, 504 & 506 I.P.C. and Sections 3/4 of the Dowry Prohibition Act in spite of time having been sought by the A.P.O., without the accused being present in the Court.

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11. The Enquiry Officer recorded that apart from the statement of the complainant, there was no other evidence in support of the allegations. The Enquiry Officer had recorded the statement of Sri. Parvez Alam Advocate, who had stated that he was the Counsel in Misc. Case No. 58/ 2011 and he had not given any illegal amount to the petitioner. He further stated that the complainant Sri. Mahesh Pal Singh Yadav was not a Counsel in Misc. Case No. 58/ 2011.

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12. The Enquiry Officer had recorded the statement of Sri. Ram Kishore, the applicant of Misc. Case No. 58/ 2011, who stated that he had not given any illegal amount to the petitioner. He further stated that he did

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not know the complainant Sri. Mahesh Pal Singh Yadav Advocate and he was not a Counsel in Misc. Case No. 58/ 2011.

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13. The Enquiry Officer held that earlier the aforesaid application had been dismissed in default of appearance and no order had been passed on the merits of the case, but subsequently after hearing, the application was allowed and although the petitioner had committed a procedural error in restoring the case without any application, as the applicant of the case and his Counsel Sri. Parvez Alam Advocate had stated that no illegal payment had been made and as Sri. Mahesh pal Singh Yadav Advocate was not a Counsel in the case, it could not be said that the petitioner had accepted any illegal gratification.

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14. Regarding the allegation of the complainant that bail was granted to Puneet Tyagi without his appearance, the Enquiry Officer recorded the statement of the then Court Moharrir Sri. Laksham Singh, who had stated that the Court had passed an order for taking the accused in custody, he had taken the accused in custody and he had sent the ‘Robkar Haziri’ of the accused Puneet to Police Station Asmoli, which had been produced before the Enquiry Officer. The Enquiry Officer further recorded that the bail application had signature of the accused Puneet and there was no material available to establish that the accused Puneet Tyagi had been granted bail without his appearance and after taking illegal gratification.

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15. The District Judge sent a report dated 11.07.2016 to the High Court, stating that he was in agreement with the aforesaid enquiry report and on 22.11.2018, the Administrative Judge passed an order after perusal of the enquiry report, that no further action was required in the matter.

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16. Another complaint was given to the District Judge by one Amjadi Begum on 24.12.2011 stating that she had filed Suit No. 633/2011, in which the petitioner had passed an order dated 25.07.2011 directing the parties to maintain status quo and not to raise any construction. Subsequently, one Shafiq Ahmad filed Suit no. 925/2011 for restraining Amjadi Begum from interfering in constructions, Amjadi Begum appeared and opposed the prayer and no interim order could

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be passed. Concealing the fact of pendency of the aforesaid two suits, Shafiq Ahmad filed another Suit No. 1066/2011 and by misleading the Court, he obtained permission to lay a lintel. The complainant also alleged that the order had been passed after taking some undue benefit.

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17. The Administrative Judge had sought a report from the District Judge on the aforesaid complaint of Amjadi Begum. The District Judge got an enquiry conducted by Sri. Sanjay Kumar Verma, H.J.S. The petitioner had submitted his reply stating that he had passed the interim order in Suit No. 1066/2011 on the basis of the material available before him and the application under Order XXXIX Rule 4 could not be disposed off as the record of the case had been summoned by the Revisional Court.

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18. The Enquiry Officer had sent a notice to the complainant Amjadi Begum, but it was reported that she had died and none of his heirs came forward.

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19. In his report dated 06.01.2017, the Enquiry Officer concluded that at the time of granting the interim order in Suit No. 1066/2011, there was nothing on record mentioning about pendency of the earlier suits. There was nothing to establish that the order had been passed after taking any illegal benefit and the complaint was baseless.

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20. On 21.02.2017, the Administrative Judge passed an order after perusal of the enquiry report, consigning the complaint to record.

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21. Thereafter a charge sheet was prepared against the petitioner, which was approved by the Hon’ble Chief Justice on 22.03.2017, leveling the following two charges: -

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“1. That while you were posted as Civil Judge (Junior Division) Sambhal, Moradabad since 17.12.2009 to 16.04.2012 you passed judicial order violating the procedure established by law. You passed two contradictory orders U/s 39 (2) CPC in O.S. No. 1478/2011 and 1426//2011. Both the suits were relating in Award dated 01.08.2007. 2. That you were running two concurrent order sheets of Criminal Miscellaneous No. 58/2011, Ram Kishore Vs. Ram Nivas and others

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application U/s 156 (3) Cr.P.C. and were passing different orders in different files as per your whim by violating the legal norms and procedures established by law and the orders passed by you adversely reflect upon your integrity and reputation.”

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22. The charge-sheet mentions the following documentary evidences to be adduced in support of the charges: -

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(i) complaint dated 25.11.2011 of Sri Mahesh Pal Singh, Advocate.

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(ii) inquiry report dated 23.03.2011 of Sri A. K. Upadhyay, Additional District Judge, Court No. 1, Moradabad.

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(iii) both the order sheets maintained to run on the record of Criminal Misc. Application No. 58 of 2011, under Section 156(3) Cr.P.C. moved by Ram Kishore on 08.03.2011.

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(iv) copy of complaint and order sheets of O.S. Nos. 1426 of 2011 Mohd. Ishtiyak v. Mohd. Irfan & Ors. and 1478 of 2011, Mohd. Musharraf & Ors. v. Mohd. Ishtiyak & Ors.

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23. In furtherance of the charge sheet, an inquiry was conducted. The inquiry report contains a narration that the inquiry emanates from the annual confidential remarks recorded by the District Judge on 28.09.2012, for the year 2011-12, on the basis whereof a vigilance bureau inquiry had been initiated vide order dated 20.06.2013 passed by the Hon'ble Chief Justice. The petitioner submitted his written statement dated 19.04.2017 denying the charges. Regarding passing contradictory orders in two suits, the petitioner submitted that the cause of action of both the suits was quite different and the documents filed in both the suits were also different and neither of the parties to any of the two suits made any objections or protest against any of the orders passed by him.

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24. Regarding charge no. 2 that he was running two concurrent order sheets in one case, the petitioner submitted that the allegation was false and it originated from a complaint dated 25.11.2011 filed by Sri

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Mahesh Pal Singh Yadav, Advocate, who was not a counsel in the case, as was apparent from the statements of Sri Mahesh Pal Singh Yadav, Sri Parvej Alam and the applicant Ram Kishore recorded during an earlier inquiry. In the inquiry report dated 23.04.2016, the inquiry officer had found the allegations to be false.

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25. The Inquiry Officer noted the submissions of the petitioner regarding charge no. 1 that he had passed orders in Suits No. 1478 of 2011 and 1426 of 2011 on the basis of material placed before him in the aforesaid suits. He further submitted that in the subsequent Suit No. 1478 of 2011, there was no mention of the previous Suit No. 1426 of 2011 and of the interim order passed in it. The inquiry report mentions that the petitioner 'had adduced his defence evidences through presentation of certain documentary evidences', but the particulars of the defence evidences adduced by the petitioner has not been disclosed in the enquiry report and there is no discussion regarding the same.

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26. The inquiry report contains a narration of certain orders passed by the petitioner in as many as 9 cases having been collected by the inquiry officer. These orders were not mentioned in the charge sheet and there is nothing on record to indicate that this material relied upon by the inquiry officer was provided to the petitioner.

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27. The Inquiry Officer concluded that ‘a study of the orders passed by the petitioner makes it amply clear that the petitioner was habitual in granting interim injunction on regular basis; that the settled principle of law on this point is that granting ex-parte interim injunction is an exception whereas issuing of notice to hear both the parties is the general rule. The act of the Charged Officer seems violating this settled principles of law.’

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28. The Inquiry Officer came to a conclusion that the petitioner had passed contradictory orders in two suits originating from the same award and he was guilty of charge no. 1. However, the Inquiry Officer

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further recorded that no opinion could be formed on this point, as the matter was sub-judice in Hon'ble High Court in Civil Misc. Writ Petition No. 69275 of 2011.

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29. Regarding charge no. 2, the Investigating Officer relied upon the statements of the complainant Sri Mahesh Pal Singh Yadav, Sri Parvej Alam, Advocate and Sri Ram Kishore.

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30. Sri. Mahesh Pal Singh had stated that the petitioner used to sit late in his Court, at about 02:00 p.m.; that he used not to hear regular matters, but he used to take up only urgent matters like bail and fresh suits; that his reputation was not good and there was a general perception that he used to take bribes; that he used to pass defective orders. However, the said witness had further stated that the petitioner did not ever demand bribe from him. He said that Misc. Case No. 58 of 2011 under Section 156 (3) Cr.P.C. titled Ram Kishore versus Ram Nivas was filed by his junior and his junior’s client had told him that he had got the application allowed by fulfilling the illegal demand of the petitioner, but the witness did not know as to what was the alleged illegal demand. Sri. Mahesh Pal Singh stated that he had made a complaint against the petitioner on the basis of the order passed by him and on the basis of the general perception. He stated that he had three junior associates – Sri. Prashant Gupta, Sri. Monu Gupta and 1-2 more Advocates used to sit on his seat but he did not know their names. He did not know Ram Kishore prior to 15.04.2011 and he did not know as to how Ram Kishore came to his seat.

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31. Upon being cross-examined by the petitioner, Sri. Mahesh Pal Singh Yadav stated that he did not know as to how many cases had been decided by the petitioner on merits during the year 2011-12 and that the petitioner had performed 189.95% of the quota of the work assigned to him. He admitted that he was not an Advocate in the matter of Ram Kishore and he had not argued the matter. Earlier his junior and Ram Kishore had told him that the application had been

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rejected and later on Ram Kishore told that the application had been allowed.

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32. The second witness Sri. Parvez Alam Advocate stated that on 15.04.2011 he had filed the application Ram Kishore versus Ram Nivas under Section 156 (3) Cr.P.C. and the petitioner had told him that the application had been dismissed in default; that he made an oral prayer to the petitioner that he had gone to drink water and his application be decided on merits, whereupon the petitioner heard his submissions and passed order thereon. His client Ram Kishore had not come to the Court on that date. Ram Kishore had paid him merely Rs.250/- to 300/- as fee for the application. He further stated that the wife of Sri. Mahesh Pal Singh Yadav was a Member of Zila Panchayat and he seldom used to come to the Court and that he was habitual of filing false complaints for gaining cheap popularity. He categorically stated that the petitioner was famous as an honest officer.

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33. The Enquiry Officer had examined the applicant Ram Kishore also, who stated that he had given an application under Section 156 (3) Cr.P.C. on 08.03.2011 through Sri. Parvez Alam Advocate but he did not go to the Court to do pairvi of the application after that date. He categorically stated that he did not go to the Court on 15.04.2011; that he did not pay any bribe and that he did not tell to Sri. Mahesh Pal Singh Yadav or to any other person that he had paid bribe.

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34. The Enquiry Officer noted the submission of the petitioner that the charge emanates from a complaint dated 25.11.2011 filed by Sri. Mahesh Pal Singh Yadav Advocate in relation to the order passed by the petitioner in Cr. Case No. 58/2011 under Section 156 (3) Cr.P.C. An enquiry had been initiated and the Enquiry Officer had submitted a report holding the petitioner not guilty. The District Judge Moradabad had submitted the Report to the High Court.

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35. However, the Enquiry Officer held that “a report dated 23.03.12 submitted by Addl. District and Sessions Judge has clearly mentioned

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that I asked learned Civil Judge (Jr. Division) Sanbhal about the said facts and he admitted that the signatures of both the order sheets (one photo state copy) belong to him and he very well admitted the signatures of both the order sheets but surprisingly the previous order sheet of the said file on which the application under section 156 (3) Cr.P.C. had been rejected has been misplaced by the Presiding Officer. Thus, Presumption goes against the presiding Officer that he has deliberately misplaced the order sheet because of the complaint and as the file was kept in his judgment box, then also the presumption goes against him. Thus the contents of the complaint are proved against the Presiding Officer that he was running two parallel order sheets in the same file and on one order sheet he has rejected the application moved under Section 156 (3) Cr.P.C. whereas on another order sheet he has allowed the application under Section 156 (3) Cr.P.C. for the reasons best known to him.”

¶99

36. The petitioner submitted his explanation against the enquiry report wherein he stated that the Enquiry Officer had made a verbatim reproduction of the statement of the complainant Mahesh Pal Singh Yadav that was recorded by the Special Vigilance Enquiry Officer on 26.07.2014 and he had merely changed its date to 28.06.2017 and the statements of Sri. Parvez Alam and Sri. Ram Kishore were also verbatim copies of their previous statements recorded by the Special Vigilance Enquiry Officer, indicating that the Enquiry Officer did not hold any independent enquiry. The Enquiry Officer did not take into consideration the categorical statement of Sri. Mahesh Pal Singh Yadav that the petitioner did not demand bribe from him and that he had been told about the application by his junior Monu Gupta, but Monu Gupta was not examined. The petitioner had further submitted that the conclusion of the Enquiry Officer, which has been quoted above, was also a verbatim reproduction from the earlier report of Special Vigilance Officer A. K. Upadhyay.

¶100

37. However, on 22.11.2017 the Administrative Committee of the High Court resolved to accept the Enquiry Report dated 29.08.2017 and to

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place the matter before the Hon’ble Full Court. In its meeting held on 26.05.2018, the Full Court resolved to punish the petitioner with removal from service. Accordingly, the Government issued an Office Memorandum dated 02.04.2019 removing the petitioner from service. 38. Sri. Sandeep Dixit Senior Advocate appearing for the petitioner has submitted that the petitioner has been punished for the charges for which earlier an adverse entry had been awarded to him and an enquiry had been held in which the petitioner was not found guilty and after taking into consideration the enquiry report, the Administrative Judge had closed the matter. He has submitted that the petitioner has subsequently been punished for the same charges, which is impermissible in law. He has next submitted that the punishment order has been passed after taking into consideration orders passed by the petitioner in 9 other cases, regarding which neither any charge was leveled not was any opportunity was given to the petitioner to submit his explanation and the punishment order has been passed on the basis of material which was extraneous, which vitiates the punishment order.

¶103

39. Sri. Dixit has relied upon the judgments in the cases of Narinder Mohan Arya v. United India Insurance Co. Ltd., (2006) 4 SCC 713, M. V. Bijlani v. Union of India, (2006) 5 SCC 88, State of Uttaranchal v. Kharak Singh, (2008) 8 SCC 236, Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570, P.C. Joshi v. State of U.P., (2001) 6 SCC 491 and some other judgments and we will consider the same in the following paragraphs.

¶104

40. Per Contra, Sri. Gaurav Mehrotra, the learned Counsel for the High Court has submitted that the petitioner being a judicial officer, the charge of misconduct alone was sufficient to support the punishment order of removal and it was not necessary that the allegation of extraneous consideration ought to have been proved against the petitioner. He has submitted that the adverse entry given in the annual report for the year 2011-12 was not given by way of punishment and, therefore, the principle of double jeopardy is not attracted to the present case and

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the earlier adverse entry was no bar for passing the punishment order. He further submitted that earlier, the Administrative Judge had ordered closure of the complaint merely after a preliminary enquiry and no detailed enquiry had been held in the matter and, therefore, the closure of the complaint by the Administrative Judge would not bar the subsequent detailed enquiry and the consequent order of removal.

¶107

41. Sri. Mehrotra has relied upon the decisions in the cases of Muzaffar Husain v. State of U.P., 2022 SCC OnLine SC 567, Union of India v. K.K. Dhawan (1993) 2 SCC 56, Rajasthan High Court v. Ved Priya, 2020 SCC OnLine SC 337 and Union of India v. P. Gunasekaran , (2015) 2 SCC 610 and has submitted that while exercising the power of judicial review, this Court should not reexamine the evidence led before the Enquiry Officer and this Court is not exercising the power of appeal.

¶108

42. It is true that the scope of judicial review while examining the validity of any decision under Article 226 of the Constitution of India is limited to examining errors in the decision making process. In Muzaffar Husain v. State of U.P. , 2022 SCC OnLine SC 567, the Hon’ble Supreme Court held that: -

¶109

“8. It is trite to say that the power of judicial review conferred on the constitutional Court is not that of an appellate authority but is confined only to the decision-making process. Interference with the decision of departmental authorities is permissible only if the proceedings were conducted in violation of the principles of natural justice or in contravention of statutory regulations regulating such proceedings or if the decision on the face of it is found to be arbitrary or capricious. The Courts would and should not act as an appellate Court and reassess the evidence led in the domestic enquiry, nor should interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly conducted, and the findings are based on evidence, the adequacy of the evidence or reliability of evidence would not be a ground to interfere with the findings recorded in the departmental enquiries.”

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43. In Union of India v. P. Gunasekaran (2015) 2 SCC 610, the Hon’ble Supreme Court held that: -

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“12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

¶113

(a) the enquiry is held by a competent authority;

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(b) the enquiry is held according to the procedure prescribed in that behalf;

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(c) there is violation of the principles of natural justice in conducting the proceedings;

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(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

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(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

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(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

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(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

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(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

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(i) the finding of fact is based on no evidence.”

¶122

44. Sri. Gaurav Mehrotra has lastly submitted that the Full Court has recommended removal of the petitioner from service and this Division Bench should not doubt the collective wisdom of the Full Court. He has relied upon a judgment of the Hon’ble Supreme Court in Rajasthan High Court v. Ved Priya , 2020 SCC OnLine SC 337, wherein the Hon’ble Supreme Court held that: -

¶123

“13. At the outset, we may observe that both the appellant as well as the impugned judgment have elucidated the correct

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statement of law regarding the width and sweep of judicial review by a High Court over the decisions taken by its Full Court on administrative side. Although it would be a futile task to exhaustively delineate the scope of writ jurisdiction in such matters but a High Court under Article 226 has limited scope and it ought to interfere cautiously. The amplitude of such jurisdiction cannot be enlarged to sit as an ‘appellate authority’, and hence care must be taken to not hold another possible interpretation on the same set of material or substitute the Court's opinion for that of the disciplinary authority. This is especially true given the responsibility and powers bestowed upon the High Court under Article 235 of the Constitution. The collective wisdom of the Full Court deserves due respect, weightage and consideration in the process of judicial review.

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45. As has already been noticed in the preceding paragraphs, in the present case the Enquiry Officer has relied upon the orders passed in 9 other cases, regarding which no charge had been framed against the petitioner, the petitioner was not given an opportunity to give his explanation regarding those 9 orders, the Enquiry Officer had ignored the contradictions in the statement of Sri. Mahesh Pal Singh Yadav and he had ignored that his evidence was merely hearsay evidence and the Enquiry Officer totally ignored the statements of the other witnesses Sri. Parvez Alam Advocate and Sri. Ram Kishore - the applicant in the application under Section 156 (3) Cr.P.C. The findings recorded by the Enquiry Officer in such a manner by relying upon inadmissible extraneous and hearsay evidence and by ignoring relevant and admissible evidence, can only be said to be perverse and this Court is not only within its right to interfere with such a finding, but is under a duty to interfere so as to prevent a miscarriage of justice. Our view finds support by the view expressed by the Hon’ble Supreme Court in Narinder Mohan Arya v. United India Insurance Co. Ltd., (2006) 4 SCC 713, wherein it was held that: -

¶127

“26…. . In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following:

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(1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry.

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(2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice.

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(3) Exercise of discretionary power involves two elements—(i) objective, and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element.

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(4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis.

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(5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal.

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(6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances.”

¶135

46. Again, in M.V. Bijlani v. Union of India , (2006) 5 SCC 88, the Hon’ble Supreme Court reiterated that: -

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“25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact . He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.”

¶137

47. When we scrutinize the facts of the present case in light of the law laid down by the Hon’ble Supreme Court in the above mentioned cases, we find that the only charges leveled against the petitioner were that he had passed two contradictory orders U/s 39 (2) CPC in O.S. No. 1478/2011 and 1426//2011 and that he was running two

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concurrent order sheets of Criminal Miscellaneous No. 58/2011, Ram Kishore Vs. Ram Nivas and others application U/s 156 (3) Cr.P.C. and was passing different orders in different files as per his whim by violating the legal norms and procedures established by law and the orders passed by him adversely reflected upon his integrity and reputation. The evidence to be relied upon in support of the charges mentioned in the charge-sheet were (i) complaint dated 25.11.2011 of Sri Mahesh Pal Singh, Advocate, (ii) inquiry report dated 23.03.2011 of Sri A. K. Upadhyay, Additional District Judge, Court No. 1, Moradabad, (iii) both the order sheets maintained to run on the record of Criminal Misc. Application No. 58 of 2011, under Section 156(3) Cr.P.C. moved by Ram Kishore on 08.03.2011 and (iv) copy of complaint and order sheets of O.S. Nos. 1426 of 2011 Mohd. Ishtiyak v. Mohd. Irfan & Ors. and 1478 of 2011, Mohd. Musharraf & Ors. v. Mohd. Ishtiyak & Ors.

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48. No charge had been leveled against the petitioner regarding any other order passed by the petitioner in any other case and the order passed in any other case was mentioned in the charge-sheet as the material which would be taken into consideration in support of the charges. However, the Enquiry Officer has recorded in his report that in course of inquiry, he had collected the orders passed by the petitioner in 9 cases and had been collected by him. The Inquiry Officer concluded that ‘a study of the orders passed by the petitioner makes it amply clear that the petitioner was habitual in granting interim injunction on regular basis; that the settled principle of law on this point is that granting ex-parte interim injunction is an exception whereas issuing of notice to hear both the parties is the general rule. The act of the Charged Officer seems violating this settled principles of law.’

¶141

49. There is nothing on record to indicate that the enquiry office had put the petitioner to notice that the orders passed in 9 other cases will also be taken into consideration against him so as to enable him to give an explanation regarding those orders. Thus it is apparent on the face of

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the record that the enquiry officer has taken into consideration extraneous material, which is clearly in violation of the law laid down by the Hon’ble Supreme Court in Narinder Mohan Arya (Supra), that the enquiry officer is not permitted to travel beyond the charges and he is not permitted to collect any material from outside sources during the conduct of the enquiry.

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50. The charge no. 1 against the petitioner is that he had passed contradictory orders in Suits No. 1426 of 2011 and 1478 of 2011. The Inquiry Officer noted the submission of the petitioner regarding charge no. 1 that he had passed orders in Suits No. 1478 of 2011 and 1426 of 2011 on the basis of material placed before him in the aforesaid suits. He further submitted that in the subsequent Suit No. 1478 of 2011, there was no mention of the previous Suit No. 1426 of 2011 and of the interim order passed in it. The inquiry report mentions that the petitioner ‘had adduced his defence evidences through presentation of certain documentary evidences’, but the particulars of the defence evidences adduced by the petitioner have not been disclosed in the enquiry report and there is no discussion regarding the same. Without discussing the defence evidence, the Inquiry Officer reached a conclusion that the petitioner had passed contradictory orders in two suits originating from the same award and he was guilty of charge no. 1. However, the Inquiry Officer further recorded that no opinion could be formed on this point, as the matter was sub-judice in Hon’ble High Court in Civil Misc. Writ Petition No. 69275 of 2011.

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51. The Enquiry Officer has held the petitioner guilty of having passed contradictory orders without dealing with the petitioner’s explanation that he had passed the orders as per the pleadings of the respective suits and on the basis of the material placed before him in both the suits and that in the subsequent suit, there was no mention of the earlier suit and the order passed in it. Thus the enquiry officer has recorded his finding in respect of charge no. 1 without taking into

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consideration the petitioner’s explanation, which renders the finding perverse.

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52. The second charge against the petitioner was that he maintained two concurrent order sheets of Criminal Miscellaneous No. 58/2011, Ram Kishore Vs. Ram Nivas and others, application U/s 156 (3) Cr.P.C. and was passing different orders in different files as per his whim by violating the legal norms and procedures established by law and the orders passed by him adversely reflected upon his integrity and reputation. This charge emanated from the complaint of Sri. Mahesh Pal Singh Yadav Advocate. The Enquiry Officer claims to have recorded the statement of the complaint of Sri. Mahesh Pal Singh Yadav Advocate on 28.06.2017 and the petitioner has contended that this statement was a verbatim reproduction of the statement of the complainant Mahesh Pal Singh Yadav that was recorded by the Special Vigilance Enquiry Officer on 26.07.2014 and he had merely changed its date to 28.06.2017, indicating that the Enquiry Officer has merely acted on the material that had been collected in the earlier vigilance enquiry.

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53. Sri. Mahesh Pal Singh Yadav had stated that he was not an Advocate in Misc. Case No. 58 of 2011 under Section 156 (3) Cr.P.C. titled Ram Kishore versus Ram Nivas and the petitioner had not demanded any bribe from him. He said that the application was filed by his junior and his junior’s client Sri. Ram Kishore had told him that he had got the application allowed by fulfilling the illegal demand of the petitioner and, therefore, his evidence was merely hearsay evidence and was not admissible. This witness did not know as to what was the alleged illegal demand. The witness Ram Kishore categorically stated that the petitioner had not demanded any money from him and he had not told Sri. Mahesh Pal Singh Yadav or to any other person that the petitioner had demanded bribe from him.

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54. Sri. Mahesh Pal Singh Yadav had stated that he had three junior associates – Sri. Prashant Gupta, Sri. Monu Gupta and 1-2 more Advocates used to sit on his seat but he did not know their names and he did not state that Sri. Parvez Alam Advocate, Counsel for Ram Kishore, was his junior. Sri. Mahesh Pal Singh further stated that he had made a complaint against the petitioner on the basis of the order passed by him and on the basis of the general perception. Thus his statement was merely hearsay evidence, which was full of material contradictions, but the Enquiry Officer accepted the hearsay evidence as gospel truth and he ignored the contradictions in the same.

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55. The second witness Sri. Parvez Alam Advocate stated that on 15.04.2011 he had filed the application Ram Kishore versus Ram Nivas under Section 156 (3) Cr.P.C. and the petitioner had told him that the application had been dismissed in default; that he made an oral prayer to the petitioner that he had gone to drink water and his application be decided on merits, whereupon the petitioner heard his submissions and passed order thereon. His client Ram Kishore had not come to the Court on that date. Ram Kishore had paid him merely Rs.250/- to 300/- as fee for the application. He further stated that the wife of Sri. Mahesh Pal Singh Yadav was a Member of Zila Panchayat and he seldom used to come to the Court and that he was habitual of filing false complaints for gaining cheap popularity. He categorically stated that the petitioner was famous as an honest officer. However, the Enquiry Officer totally ignored the statement of Parvez Alam Advocate without assigning any reason for doing the same and he recorded his findings against the petitioner.

¶153

56. The Enquiry Officer had examined the applicant Ram Kishore also, who had stated that he had given an application under Section 156 (3) Cr.P.C. on 08.03.2011 through Sri. Parvez Alam Advocate but he did not go to the Court to do pairvi of the application after that date. He categorically stated that he did not go to the Court on 15.04.2011; that he did not pay any bribe and that he did not tell to Sri. Mahesh Pal

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Singh Yadav or to any other person that he had paid bribe. However, the Enquiry Officer totally ignored the statement of the Applicant Ram Kishore while recording his findings against the petitioner, without assigning any reason of ignoring this relevant evidence.

¶156

57. In Roop Singh Negi v. Punjab National Bank , (2009) 2 SCC 570, the Hon’ble Supreme Court held that “ Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties ….” The finding recorded by the Enquiry Officer, by relying upon the hearsay evidence of Sri. Mahesh Pal Singh Yadav and without dealing with the explanation given by the petitioner in respect of both the charges, has not been arrived at without taking into consideration the relevant material in the shape of the petitioner’s explanation and the statements of the witnesses Sri. Parvez Alam Advocate and Sri. Ram Kishore, and the same is perverse and is vitiated.

¶157

58. Further, there was no charge that the petitioner had passed the contradictory orders in the suits for some extraneous consideration. In P.C. Joshi v. State of U.P., (2001) 6 SCC 491, the Hon’ble Supreme Court has held that: -

¶158

“7. In the present case, though elaborate enquiry has been conducted by the enquiry officer, there is hardly any material worth the name forthcoming except to scrutinize each one of the orders made by the appellant on the judicial side to arrive at a different conclusion. That there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The enquiry officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best, he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary

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will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly. Indeed the words of caution are given in K.K. Dhawan case (1993) 2 SCC 56 and A.N. Saxena case (1992) 3 SCC 124 that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the appellant in this case.”

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59. The witness Mahesh Pal Singh Yadav had stated that the petitioner had dismissed Misc. Case No. 58/2011 titled Ram Kishore versus Ram Nivas, under Section 156 (3) Cr.P.C. but the application was subsequently accepted on the same day, which at the most alleged passing of two different orders on one date. However, merely on this statement, the charge that the Enquiry Officer found proved was that the petitioner “ maintained two concurrent order sheets of Criminal Miscellaneous No. 58/2011, Ram Kishore Vs. Ram Nivas and others, application U/s 156 (3) Cr.P.C. and was passing different orders in different files” as if this continued for plural dates. This indicates that the approach of the Enquiry Officer was to exaggerate the allegations against the petitioner while at the same ignoring the material that favoured him. Such an approach by the Enquiry Officer cannot be appreciated as he was performing a quasi-judicial function and he was expected to act in a fair and just manner.

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60. In Sadhna Chaudhary v. State of U.P. , (2020) 11 SCC 760, the Hon’ble Supreme Court has cautioned that “one cannot overlook the reality of ours being a country, wherein countless complainants are readily available without hesitation to tarnish the image of the judiciary, often for mere pennies or even cheap momentary popularity. Sometimes, a few disgruntled members of the Bar also join hands with them, and the officers of the subordinate judiciary are usually the easiest target. It is, therefore, the duty of the High Courts to extend their protective umbrella and ensure

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that the upright and straightforward judicial officers are not subjected to unmerited onslaught.”

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61. In K. K. Dhawan (1993) 2 SCC 56 the Hon’ble Supreme Court had listed the following six instances when such action could be taken: -

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“(i) where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;

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(ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;

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(iii) if he has acted in a manner which is unbecoming of a government servant;

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(iv) if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;

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(v) if he had acted in order to unduly favour a party;

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(vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago ‘though the bribe may be small, yet the fault is great’.”

¶172

62. From the material placed before and examined by the Enquiry Officer, merely this much was proved that the petitioner had passed two contradictory orders in two different suits on two different dates and that although he had dismissed an application under Section 156 (3) Cr.P.C. in default of appearance, after the Counsel appearing and making an oral prayer for being heard, he was heard and the application was allowed. There was no allegation against the petitioner that he had passed the orders for some extraneous reasons. There was nothing more so as to make out any of the instances mentioned by the Hon’ble Supreme Court in K. K. Dhawan (Supra) justifying disciplinary action against the petitioner and his punishment therein by removing him from service. In light of the law laid down by the Hon’ble Supreme Court in P. C. Joshi, Ramesh Chander Singh and Krishna Prasad Verma, the petitioner should not have been penalized by removing him from service merely for having passed wrong orders.

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63. As we have already held that the findings recorded by the Enquiry Officer, by relying upon the hearsay evidence of Sri. Mahesh Pal Singh Yadav and without dealing with the explanation given by the petitioner in respect of both the charges, has not been arrived at without taking into consideration the relevant material in the shape of the petitioner’s explanation and the statements of the witnesses Sri. Parvez Alam Advocate and Sri. Ram Kishore, is perverse and is vitiated, the punishment order based on such an Enquiry Report also cannot withstand the scrutiny of law and it has to be quashed. The explanation given by the petitioner in respect of charge no. 1 appears to be sufficient for disproving charge no. 1 and statements of the witnesses Sri. Parvez Alam Advocate and Sri. Ram Kishore disproved the charge no. 2 against the petitioner. That is the reason that after the earlier enquiry held against the petitioner, the Administrative Judge had closed the complaints against the petitioner.

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64. In view of the aforesaid discussion, the Writ Petition is allowed in part . The order dated 02.04.2019 passed by the State Government removing the petitioner from the post of Civil Judge (Junior Division) is quashed. Consequently, the petitioner stands reinstated in service on the post of Civil Judge (Junior Division).

¶176

65. Although the petitioner has claimed payment of back wages and other consequential benefits, neither any material has been placed on record to support the aforesaid prayer by establishing that the petitioner was not gainfully employed during the period he had to remain out of service, nor has any submission been made by the learned Counsel for the petitioner to press this prayer. Therefore, the prayer for grant of back-wages to the petitioner is rejected. However, it is provided that except for the back wages, the petitioner shall be entitled to get all the other benefits consequent to quashing of the removal order, including seniority etc.

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66. So far as the petitioner’s challenge to the adverse remarks awarded for the year 2011-12 is concerned, the same had not been awarded by way of punishment and the same are based on the appraisal of the petitioner’s work by the District Judge and the Administrative Judge had rejected the petitioner’s representation against the adverse remarks. We do not find any good ground to interfere with the adverse remarks and the prayer made by the petitioner in this regard is rejected.

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(Subhash Vidyarthi, J.) (Ramesh Sinha, J.)

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Order Date :- 21^st February, 2023. Ram.

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Digitally signed by :- RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench

Rajendra Prasad Bharti v. State of U.P Thru.Addl.Chief Secy. Deptt.of Appointment andANR

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Rajendra Prasad Bharti v. State of U.P Thru.Addl.Chief Secy. Deptt.of Appointment andANR

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