G. R. Sande Vs State Of Chhattisgarh

The petitioner has preferred the instant petition under Article 226 of the Constitution of India being aggrieved by order dated 12.05.2015 (Annexure P/1) and 20.11.2015 (Annexure P/2), whereby the petitioner has been removed from service and appeal preferred against the removal has been dismissed respectively.

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Brief facts of the case, as projected by the petitioner, are

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that on 11.07.1994, the petitioner was appointed on the post of Civil Judge Class-II and thereafter he was promoted to the post of Civil Judge Class-I, Additional Chief Judicial Magistrate and then to the post of Additional District Judge & transferred to Raigarh in the capacity of Additional District and Sessions Judge (Fast Track Court) in the year 2005. According to the petitioner, in the month of May 2006, an application under Section 438 of Code of Criminal Procedure was filed before the Court of learned District Judge, Raigarh. The said bail application was allotted to the 3rd Additional Sessions Judge, Raigarh. Since the said Presiding Officer was on leave, the said application was placed/posted in summer vacation before the IV Additional Sessions Judge, Raigarh, i.e. the petitioner, for its disposal. 3. The aforesaid bail application was registered as Bail Application No. 254/2006. On 17.05.2006, the said bail application was placed before the petitioner. The bail application was heard and disposed off vide Annexure P/4 by the petitioner on the very day. On 09.11.2006, a complaint (Annexure P/5) without signature and affidavit was received by the office of Registrar General, High Court of Chhattisgarh alleging therein that the said bail application was entertained by the petitioner for some extraneous factors. Based on the aforesaid complaint, a preliminary

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inquiry was conducted and thereafter decision was taken to conduct the departmental enquiry. After passing the order of conduction of departmental enquiry, charge sheet (Annexure P/6) was issued to the petitioner levelling charges that the petitioner has granted/allowed anticipatory Bail Application No. 254/2006 after taking illegal gratification of Rs. 1 lakh and a mobile phone worth Rs. 27,000/- from the accused therein. The said charge sheet also enumerates that the petitioner has entertained the third bail application without their being any significant change in circumstances for entertaining and allowing the third bail application. In the charge sheet, it has also been stated that the act of the petitioner amounts to grave misconduct of a Government Servant/Judicial Officer under Rule 3 of Chhattisgarh Civil Services (Conduct) Rules 1965 and the same is punishable under Rule 10 of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules 1966 (for short ‘the Rules 1966’).

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After issuance of the charge-sheet, Enquiry Officer was appointed and an enquiry was conducted by recording the evidence of as many as 03 witnesses from the department side. The examination of the petitioner was also conducted by the Enquiry Officer. On the basis of evidence collected/adduced during the enquiry, the Enquiry Officer

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submitted enquiry report (Annexure P/7) arriving at conclusion that allegation of illegal gratification has not been proved. However, it was found by the Enquiry Officer that the conduct of the petitioner was not in conformity with the judicial discipline.

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According to the petitioner, no clear cut finding has been given by the Enquiry Officer that how the petitioner be held liable for committing misconduct and Enquiry Officer himself observed in enquiry report that nothing has been produced before the Enquiry Officer to substantiate the charges leveled against the petitioner.

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After recording the finding by the Enquiry Officer, enquiry report was sent to the Disciplinary Authority for necessary action. On the basis of enquiry report submitted by the Enquiry Officer, a show cause notice (Annexure P/8) was issued to the petitioner regarding imposition of punishment much less the major punishment i.e. dismissal from service under Clause IX of Rule 10 of the Rules 1966. The petitioner duly replied to show cause notice on 14.01.2015 (Annexure P/9). The Disciplinary Authority, after due consideration of the reply submitted by the petitioner to the show cause notice, passed the impugned order dated 12.05.2015 (Annexure P/1) by virtue of which the petitioner was dismissed from service. Assailing the dismissal order

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dated 12.05.2015 (Annexure P/1), the petitioner preferred a Departmental Appeal before the Appellate Authority, which was dismissed vide order dated 19/20.11.2015 (Annexure P/2), leading to filing of instant petition seeking following relief(s) :-

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“10.1. That, the petitioner respectfully prays for issuance of suitable writ/direction for setting aside the order dated 12.05.2015 and order dated 20.11.2015 i.e. (Annexure P-1 and Annexure P-2)

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10.2 Any other relief/relief’s which this Hon’ble Court may think fit and proper in the facts and circumstances of the case with cost of the petition, may also please be granted to the petitioner.”

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Learned counsel for the petitioner submits that the Enquiry Officer while arriving at conclusion in a departmental proceeding heavily relied upon the judgment of Hon’ble Apex Court rendered in the matter of Shahzad Hassan Khan Vs. Istiaq Hassan Khan and Others reported in AIR 1987 SC 1613 , however, the said judgment lost its efficacy in view of the judgment rendered by the three Judges Bench of the Hon’ble Apex Court in the matter of Chander Singh Vs. High Court of Allahabad reported in 2007 AIR SCW 2258, wherein it has been observed by the Hon’ble Apex Court that if the High Courts were to initiate disciplinary

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proceeding based on judicial order, there should have been strong grounds to suspect officers bonafides and the order itself should have been actuated by malice, bias or illegality. It was also observed that the judicial officer was well within his right to grant bail to the accused in discharge of his judicial functions.

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Learned counsel further submits that in catena of decisions it has been upheld by the Supreme Court that the practice of initiation of disciplinary proceedings against officers of the subordinate judicially merely because the judgments/orders passed by them is wrong, the appellate and revisional courts have been established and conferred powers to set aside such orders. Learned counsel also referred the decision of Hon’ble Apex Court in the matter of Ishwar Chand Jain Vs. High Court of Punjab and Haryana reported in AIR 1988 SC 1395, wherein it has been observed that while exercising control over subordinate judicially under Article 235 of the Constitution, the High Court is under a constitutional obligation to guide and protect subordinate judicial officers. If complaints are entertained on trifling matters relating and if the High Court encourages anonymous complaints, no judicial officer would feel, secure, and it would be difficult for him to discharge his duties in an honest and independent manner.

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Learned counsel also submits that in the 21 years of judicial service no charge sheet was ever issued to the petitioner and even the annual confidential reports of the petitioner by and large were found to be good or very good. Even in the Departmental Enquiry, Shri Subhash Chandra Singh, Advocate witness No. 1, Satish Kumar Agrawal witness No. 2 and Shri Y.K. Shadangi witness No. 3 have not supported the charges leveled against the petitioner. The Enquiry Officer has observed in the report that the statement given by the aforesaid witnesses extend no benefit to the prosecution in order to substantiate the charges leveled against the petitioner. The Enquiry Officer has wrongly relied on the statement made by Shri Subhash Chandra Singh, Witness No. 1, in a preliminary inquiry ignoring that the said witness did not depose anythign adverse against the petitioner before the Enquiry Officer. It is a settled principle of law that the statement recorded in the preliminary inquiry where no such opportunity of hearing was afforded to the delinquent is not admissible and cannot be relied upon by the prosecution. The Enquiry Officer had gone into the area of judicial discretion available to the petitioner which had been exercised on bonafide consideration. The petitioner, after due consideration of the case diary and other relevant factors, granted anticipatory

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bail to the accused only for 30 days. It was not a case that the petitioner had granted blanket order of anticipatory bail to the accused / applicant setting aside all the irrelevant factors.

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Learned counsel also submits that it is not the case that the petitioner had ever made any efforts to get the aforesaid bail application placed/listed before him. The petitioner has done his duty bonafidely and had discharged his work efficiently with sincerity and honestly and there was no element of any corruption/favoritism. In fact the petitioner followed the work distribution order as well as the order of his controlling authority that has placed the matter before the petitioner. Learned counsel also submits that the petitioner had joined as Additional District and Sessions Judge on 06.10.2005 and due to lack of experience he had entertained such bail applications which were earlier decided/rejected by the 3^rd Additional Sessions Judge who was on summer vacation from 15.05.2006 to 27.05.2006 and as per work distribution order, the third bail application in the concerned case was presented before the District and Sessions Judge and the same was transferred/referred to the petitioner. The petitioner was under the bonafide impression that bail application required urgent disposal as it was listed during Summer Vacation. The Enquiry Officer had himself

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observed in the enquiry report that the complaint is not signed by complainant Brijbhushan and it was pseudonymous complaint.

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Learned counsel also submits that it is a convention that every judicial officer is likely to commit mistake of some type or the other in passing order in the initial stage of his service which a mature judicial officer may not do. However, if the orders of passed without their being any corrupt motive, the same ought to have been overlooked by the superior authority/Court and proper guidelines should be provided to him. If, after warning and guidance, the officer do not improve, then only strict action may be contemplated. The petitioner was recently appointed/posted as Additional District Judge and had worked only for seven months when the incident has taken place. There is a standing circular that if any mistake is committed by the employee/officer belonging to Scheduled Caste or Scheduled Tribe, in such a condition, a warning should be given to them before initiating any departmental action against the employee. Learned counsel next submits that it is a settled principle of law that the penalty impose must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of misconduct would be violative of Article 14 of the Constitution of India. The

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penalty impose should always be in conformity with the wednesbury principle of proportionality. In the instant case no charge has been proved against the petitioner and despite that major punishment of dismissal from service has been imposed. The Appellate Authority did not consider the fact and grounds placed by the petitioner in reply as also grounds in the appeal in its true perspective. Learned counsel also submits that in catena of decisions it has been upheld by Hon’ble Apex Court that the Appellate Authority while deciding the departmental appeal should deal with all the grounds raised by the appellant in the departmental appeal but in the instant case the statutory appeal preferred by the petitioner was dismissed by the Appellate Authority in a mechanical manner. Learned counsel also submits that in some High Courts where the enquiry was conducted against the member of higher judicial service and after completion of departmental enquiry, wherein the judicial officer was found guilty, the order of compulsory retirement was issued but in the instant case, order of dismissal has been passed meaning thereby that the petitioner would not be entitled to get pensionery benefits. The petitioner was initially appointed with the State Government in the erstwhile State of Madhya Pradesh way back in the year 1979 and in the year 1994, the petitioner was appointed in a judicial service.

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The petitioner had already completed more than 35 years of service at the time when the impugned order of dismissal was passed, therefore, the impugned order may be set aside. In support of his submission, learned counsel placed reliance on the decisions of Hon’ble Apex Court in the mater of Ishwar Chand Jain Vs. High Court of Punjab and Haryana & Another reported in (1988) 3 SCC 370, Abhay Jain Vs. High Court of Judicature for Rajasthan and Another reported in (2022) 13 SCC 1, Sanjay Vs. The State (NCT of Delhi) & Anr. reported in 2022 LiveLaw (SC) 555.

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Mr. R. Verma, learned Govt. Advocate for State/respondent No.1 and Mr. Prasoon Kumar Bhaduri, learned counsel for respondent No.2 strongly opposed the prayer of the petitioner and submit that the petitioner was promoted in the year 2005 and transferred to Additional District and Sessions Judge (FTC), Raigarh. During the Summer Vacation, the District and Sessions Judge, Raigarh has made an arrangement for hearing of criminal cases during absence of any Additional District and Sessions Judge vide order dated 30.12.2005 (Annexure P/3). Though, it was to be heard by the IV Additional District and Sessions Judge in absence of III Additional District and Sessions Judge, but the petitioner has not considered the fact that the

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circumstances of Bail Petition No. 254/2006 has not changed after its earlier rejection by the then District and Sessions Judge and twice by the then III Additional District and Sessions Judge. The competent authority has taken the matter of corruption seriously, hence, preliminary enquiry was conducted. Thereafter, decision was taken to conduct a departmental enquiry by the competent authority and after disciplinary enquiry, the competent authority was of the opinion that the act of the petitioner falls within ambit of impropriety of Judicial Discipline. Learned counsel for respondents also submits that the Judicial Officer ought to have adjourned the bail application with a direction to place the same before the same judge who had earlier rejected the bail application twice. Thus the conduct of the delinquent officer appears to be against Judicial Discipline. The Enquiry Officer has arrived at categorical finding that the conduct of petitioner is unbecoming on the part of judicial officer. The petitioner was well aware that on earlier three occasions the anticipatory bail application of the accused were rejected by the then District and Sessions Judge and III Additional District and Sessions Judge & there was no change in circumstances that warranted grant of anticipatory bail to the accused person.

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Learned counsel for respondents further submits that there

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is a specific finding in the enquiry report that in order to maintain judicial discipline, the delinquent officer, i.e. the petitioner ought to have adjourned the bail application with a direction to place it before the same judge who had earlier rejected the bail application twice. Thus, the conduct of delinquent officer is sufficient to prove that it is unbecoming on part of Judicial Officer. The disciplinary authority has duly considered all the relevant facts prior to imposing major punishment to the petitioner. The disciplinary proceedings were conducted strictly in accordance with law and the competent authority has passed the said order after due consideration of enquiry report along with other document available with the record as well as the relevant facts of the case. Learned counsel also submits that the petitioner is a judicial officer and act of the petitioner is against the judicial discipline, as such, the instant petition has no merit and the same is liable to be dismissed.

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Reliance has been placed on the decisions of Hon’ble Apex Court in the matter of Smt. Bimla Devi Vs. State of Bihar and Others reported in 1994 CRI. L.J. 638 , Naveen Arora Vs. High Court of Delhi & Anr . [ Special Leave to Appeal (C) No (s) 12247/2023] , Union of India & Others Vs. K.K. Dhawan reported in (1993) 2 SCC 56 , R.C. Chandel Vs. High Court of M.P. reported in (2012) 8 SCC 58 , K.

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Venkateshwarlu Vs. State of Andhra Pradesh reported in (2012) 8 SCC 73 , High Court of Judicature at Bombay Vs. Shashikant S. Patil and Another reported in (2000) 1 SCC 416 , State Rep. By the C.B.I. Vs. Anil Sharma reported in AIR 1997 SC 3806 , G.R. Ananda Babu Vs. The State of Tamil Nadu & Anr. [arising out of S.L.P. (Crl.) No. 213/2021] order date 28.01.2021 .

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I have heard learned counsel for the parties and perused the material available on record.

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It is not in dispute in the instant case that the petitioner was appointed as Civil judge in the year 1994, he was promoted in the year 2005 on the post of Additional District Judge and transferred to District Raigarh in the capacity of Additional District and Sessions Judge, Raigarh (F.T.C.). It is also not in dispute that during Summer Vacation, in absence of III Additional District & Sessions Judge, the Bail Petition No. 254/2006 had been heard and decided/allowed by the petitioner.

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According to the petitioner, at the relevant time, he was newly promoted judicial officer and the bail petition in question was put-up/listed before him as per work distribution order of District and Sessions Judge.

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While dealing with the issue of misconduct by a Judicial Officer while dealing with judicial matter, the Hon’ble Apex

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Court in the matter of High Court of Judicature at Bombay Vs. Uday Singh and Others reported in (1997) 5

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SCC 129 held in para 10 and 11 as under :-

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“ 10 . It is seen that the evidence came to be recorded pursuant to the complaint made by Smt Kundanben, defendant in the suit for eviction. It is true that due to time-lag between the date of the complaint and the date of recording of evidence in 1992 by the Enquiry Officer, there are bound to be some discrepancies in evidence. But the disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether a reasonable man, in the circumstances, would be justified in reaching that conclusion. The question, therefore, is whether on the basis of the evidence on record, the charge of misconduct of demanding an illegal gratification for rendering a judgment favourable to a party has been proved. In that behalf, since the evidence by Kundanben, the aggrieved defendant against whom a decree for

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eviction was passed by the respondent alone is on record, perhaps it would be difficult to reach the safe conclusion that the charge has been proved. But there is a contemporaneous conduct on her part, who complained immediately to her advocate, who in turn complained to Assistant Government Pleader and the Assistant Government Pleader in turn complained to the District Government Pleader, who in turn informed the District Judge. The fact that the District Judge made adverse remarks on the basis of the complaint was established and cannot be disputed. It is true that the High Court has directed the District Judge to substantiate the adverse remarks made by the District Judge on the basis of the statements to be recorded from the advocates and the complaint. At that stage, the respondent was not working at that station since he had already been transferred. But one important factor to be taken note of is that he admitted in the cross-examination that Shri Gite, District Government Pleader, Nasik had no hostility against the respondent. Under these circumstances, contemporaneously when Gite had written a letter to the District Judge stating that he got information about the respondent demanding illegal gratification from some parties, there is some foundation for the District Judge to form an opinion that the respondent was actuated with proclivity to commit corruption; conduct of the respondent needs to be condemned. Under these circumstances, he appears to have reached the conclusion that the conduct of the respondent required adverse

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comments. But when enquiry was done, the statements of the aforesaid persons were recorded; supplied to the respondent; and were duly crossexamined, the question arises whether their evidence is acceptable or not. In view of the admitted position that the respondent himself did admit that Gite had no axe to grind against him and the District Judge having acted upon that statement, it is difficult to accept the contention that the District Judge was biased against the respondent and that he fabricated false evidence against the respondent of the three advocates and the complainant. When that evidence was available before the disciplinary authority, namely, the High Court, it cannot be said that it is not a case of no evidence; nor could it be said that no reasonable person like the Committee of five Judges and thereafter the Government could reach the conclusion that the charge was proved. So, the conclusion reached by the High Court on reconsideration of the evidence that the charges prima facie were proved against the respondent and opportunity was given to him to explain why disciplinary action of dismissal from service could not be taken, is well justified.

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11. Under these circumstances, the question arises whether the view taken by the High Court could be supported by the evidence on record or whether it is based on no evidence at all. From the narration of the above facts, it would be difficult to reach a conclusion that the finding reached by the High Court is based on no evidence at all. The necessary conclusion is that the misconduct alleged against

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the respondent stands proved. The question then is what would be the nature of punishment to be imposed in the circumstances? Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the office and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that the imposition of penalty of dismissal from service is well justified. It does not warrant interference.”

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Further, in the matter of R.C. Chandel (supra), Hon’ble Apex Court held in para 29 as under :-

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“29. Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge hols is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society

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have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar’s wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and the rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty.”

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Further, in the matter of K.K. Dhawan (supra), Hon’ble Apex

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Court held in para 28 as under :-

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“ 28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases :

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(i) Where the officer had acted in a manner as would reflect on his reputation for integrity or

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

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In the light of above principles laid down by Hon’ble Apex Court, it is apparent that initially a preliminary enquiry was conducted against the petitioner and after being found some incriminating material, disciplinary enquiry was conducted in the matter.

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It is not a case of the petitioner that no opportunity of hearing was given to the petitioner and it is also not the objection of the petitioner that any violation of principles of natural justice was done against the petitioner during departmental enquiry.

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The petitioner was in judicial service since 1994 and the ground taken by him that due to lack of experience he had

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entertained such bail application which was earlier decided/rejected by the 3^rd Additional Sessions Judge who was on summer vacation from 15.05.2006 to 27.05.2006 has no leg to stand. Bare perusal of the disciplinary proceeding drawn against the petitioner and material adduced thereto before the Enquiry Officer, reveals that while passing/awarding major penalty, the disciplinary authority considered all the material in its right perspective and after following due process of law passed the impugned punishment order. The appellate authority while dismissing the appeal of the petitioner has also considered all grounds raised by the petitioner and left no stone untouched. The petitioner was in judicial service and he got as many as three promotions on the basis of his performance and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty.

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In the light of principles laid down by Hon’ble Apex Court in the matter of Uday Singh, R.C. Chandel and K.K. Dhawan (supra) and looking to the entire facts and circumstances of the case, the petition being without any substance is liable to be and is hereby dismissed. There shall be no order as to costs.

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Sd/- (Rajani Dubey) Judge

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pkd

G. R. Sande v. State Of Chhattisgarh

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G. R. Sande v. State Of Chhattisgarh

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