1
HIGH COURT OF MADHYA PRADESH : JABALPUR
(D.B.: HON. SHRI KRISHNA KUMAR LAHOTI & HON. SMT. SUSHMA SHRIVASTAVA J.J.)
WRIT PETITION NO. 4126/97
Ramesh Prasad Tihaiya
Vs.
Madhya Pradesh High Court & another
---------------------------------------------------------------------------
Shri K.P. Mishra, Sr. Advocate with Shri Amresh Mishra, Advocate for
the petitioner.
Shri Kishore Shrivastava, Sr. Advocate with Shri Manoj Kumar Jha,
Advocate for respondent no.1.
Shri Vivek Agrawal, Govt. Advocate for respondent no.2.
---------------------------------------------------------------------------
ORDER
Per Smt. Sushma Shrivastava J.
This is a writ petition challenging the order (Annexure P-20)
dated 20.08.96 passed by High Court of Madhya Pradesh on its
administrative side, imposing punishment of withholding of two
increments without cumulative effect on the petitioner.
2. Petitioner is a judicial officer. He was appointed as a
Civil Judge Class-II vide order dated 13.6.75; he was promoted as
Additional District Judge in due course and joined as Additional District
Judge, Rewa as per order dated 14.6.89. While posted as Additional
District Judge, Manendragarh, District Sarguja, disciplinary proceedings
were initiated against the petitioner and a departmental inquiry was
conducted against him in respect of three charges. A charge-sheet was
served on the petitioner on 15.11.94 by Madhya Pradesh High Court on
administrative side (hereinafter referred to as ‘High Court’), alongwith
the article of charges, statements of imputations, list of witnesses and list
of documents. After submission of reply by the petitioner, District and
Sessions Judge, Ambikapur was appointed as Enquiry Officer, who after
completing the inquiry, submitted his report to the High Court. The
Enquiry Officer exonerated the petitioner of all the charges, but the High
Court had not agreed with the finding of the Enquiry Officer with regard
to charge no.1 against the petitioner. Article of charge no.1 related to an
order (Annexure P-24) passed by the petitioner as an Additional Sessions
Judge, Manendragarh, District Sarguja on 30.09.93 in S.T. No.213/93
2
(State Vs. Omprakash), whereby he discharged the accused despite there
being sufficient material for framing of charge under Section 302 of IPC,
contrary to the settled principle of law that the evidence could not be
assessed while framing of charge, which was an act of grave misconduct.
3. The High Court disagreeing with the finding of the
Enquiry Officer with regard to the aforesaid article of charge no.1,
reversed the finding for the reasons recorded by it and found that the
petitioner was guilty of aforesaid charge no.1 and a show cause notice
was issued to the petitioner on 1.6.96 as to why the finding recored by
the High Court with regard to the charge no.1 should not be accepted
and why he should not be punished for the same. The petitioner filed his
reply dated 29.6.96 vide Annexure P-19 to the High Court and prayed for
his exoneration. The High Court by its order dated 20.08.96
(Annexure P-20) imposed punishment of withholding of two increments
without cumulative effect on the petitioner, as specified in Rule 10(4) of
M.P. Civil Services Control and Appeal Rules, 1966. The administrative
appeal (Annexure P-21) filed by the petitioner under Rule 23/29 of M.P.
Civil Service (Classification Control and Appeal) Rules, 1966 was also
dismissed.
4. The writ petition is preferred inter alia on the ground that
the judicial order (Annexure P-24) passed by the petitioner dated
30.09.93 in S.T.No.213/93 as Additional Sessions Judge, Manendragarh,
District Sarguja does not provide any factual basis for imputation of any
misconduct and misbehaviour against the petitioner. The petitioner
passed a judicial order, which was not legally challenged by anybody in
any manner, neither by Police or the prosecution, nor by any relative of
the deceased and even the High Court had not acted suo-moto to revise
the order when it came to its notice. The petitioner passed a judicial
order (Annexure P-24) as judicial officer on the basis of records of the
case, and the documents filed by prosecution in the Court under Section
173 of the Cr.P.C. did not make out any eyewitness account of the case;
even the possibility of forming a different opinion on the material
available in the case by itself could not form the basis of imputing
misconduct on the petitioner or for initiating a disciplinary proceeding.
There was no evidence to the fact that the order (Annexure P-24) passed
by the petitioner was actuated by any motive, nor an error or even gross
error in writing the order by itself is enough to attribute the improper
motive or misconduct to the petitioner.
3
5. According to petitioner, on account of the pendency of
departmental inquiry and consequent punishment imposed on the
petitioner, his claim for grant of selection grade as Member of Higher
Judicial Service in Madhya Pradesh has been rejected, as communicated
to him by District and Sessions Judge, Shahdol vide Annexue P-23 and
the junior members of the Higher Judicial Services have been promoted
to the selection grade ignoring the claim of the petitioner. Petitioner,
therefore, prayed that the order (Annexure P-20) imposing the
punishment of withholding of two increments without cumulative effect
on him and the order (Annexure P-23) regarding his unsuitability for
grant of Selection Grade be quashed by issuing a writ of certiorari and
the petitioner be granted consequential reliefs and the benefits, of which
he has been deprived on account of order-Annexure P-20.
6. In the return filed by High Court/respondent no.1, it has
been contended that the report of the Enquiry Officer is not binding on
the disciplinary authority; the disciplinary authority has jurisdiction under
law to arrive at its own conclusion with regard to the guilt by examination
of material on record, which has been done. The petitioner was given
due opportunity of hearing to show cause against disagreement of the
disciplinary authority with the finding of Enquiry Officer and thereby he
was granted full opportunity of hearing. After due consideration of the
material on record in the form of oral and documentary evidence,
circumstances appearing against the petitioner and culpable negligence of
the petitioner indicating deliberate act of discharge of the accused,
disciplinary authority recorded the finding that the act of the petitioner in
discharging the accused was actuated by corrupt and improper motive.
There was no violation of principle of natural justice or any other illegality
or irregularity in holding inquiry, the finding recorded by the disciplinary
authority not being perverse and based on preponderance of probability,
may not be interfered with in exercise of the extra-ordinary jurisdiction
under Article 226 of the Constitution of India. Mere non-challenge of the
order passed by the petitioner in the superior court does not create any
legal bar to hold any disciplinary action against the petitioner.
Sufficiency of the material or otherwise cannot be gone into in a petition
under Article 226 of the Constitution of India, as it cannot be treated as
an appeal to the Appellate Authority. Standard of proof required in
disciplinary cases is not as strict as required in criminal cases. The
4
petitioner was afforded full opportunity of hearing and no interference is
called for. Petitioner is not entitled to any relief claimed in the petition.
7. We have heard learned counsel for the parties.
Learned counsel for the petitioner mainly submitted that the
judicial order passed by the petitioner could not form the basis of
punishing him in the disciplinary proceedings, particularly when there was
no proof that the judicial order (Annexure P-24) passed by the petitioner
was actuated by any corrupt or improper motive and the same was never
called in question by either party by way of an appeal or revision and
none was aggrieved by it. Learned counsel for the petitioner vehemently
urged that an error in the order or possibility of arriving at a different
conclusion cannot be a ground to indict a judicial officer for taking one
view, and to attribute misconduct or corrupt motive. Reliance was placed
on the decisions rendered by the Apex Court in the case of P.C. Joshi Vs.
State of U.P. and others reported in AIR 2001 Surpeme Court page
2788 and Ramesh Chander Singh Vs. High Court of Allahabad &
another reported in (2007)4 Supreme Court Cases page 247.
8. Learned counsel for the High Court/respondent no.1, on the
other hand, submitted that even a judicial order passed by a judicial
officer, if it suffers from illegality or is actuated by malice and bias, can
form the basis for initiating disciplinary proceedings. Relying on a
judgment of the Apex Court rendered by its three Judges’ Bench in the
case of Union of India & others Vs. K.K. Dhawan reported in (1993)2
Supreme Court Cases page 56 learned counsel for respondent no.1
vehemently urged that there is no legal bar in initiating disciplinary
proceedings against a judicial officer on the basis of a judicial order
passed by him. He mainly referred to para 26 of the judgment in the
aforesaid case, wherein the Apex Court reiterated the legal position
enunciated in its earlier decision in the case of Union of India Vs. A.N.
Saxena reported in (1992)3 Supreme Court Cases page 124 as
under:-
“In our view, an argument that no
disciplinary action can be taken in regard to
actions taken or purported to be done in the
course of judicial or quasi-judicial proceedings
is not correct. It is true that when an officer is
performing judicial or quasi-judicial functions
disciplinary proceedings regarding any of his
actions in the course of such proceedings
should be taken only after great caution and a
close scrutiny of his actions and only if the
5circumstances so warrant. The initiation of
such proceedings, it is true, is likely to shake
the confidence of the public in the officer
concerned and also if lightly taken likely to
undermine his independence. Hence, the need
for extreme care and caution before initiation
of disciplinary proceedings against an officer
performing judicial or quasi-judicial functions
in respect of his actions in the discharge or
purported to discharge his functions. But it is
not as if such action cannot be taken at
all. Where the actions of such an officer
indicate culpability, namely a desire to oblige
himself or unduly favour one of the parties or
an improper motive there is no reason
why disciplinary action should not be
taken.”
9. Learned counsel for the High Court/respondent no.1 also
submitted that the legal position laid down in the case of K.K. Dhawan
(supra) has not been upset by the Apex Court in its later decision
rendered by the Bench of the equal strength in the case of Ramesh
Chander Singh (supra), cited by learned counsel for the petitioner; on
the other hand, it transpires from the following observations made by
their Lordships in para 11 of the judgment in Ramesh Chander’s case
(supra) that disciplinary proceedings can be based on a judicial order, if
there are grounds to suspect officer’s bonafides and the order itself is
actuated by malice or illegality:-
“If the High Court were to initiate
disciplinary proceedings based on a judicial
order, there should have been strong grounds
to suspect officer’s bonafides and the order
itself should have been actuated by malice,
bias or illegality.”
10. Learned counsel for High Court/respondent no.1 also
submitted that since there was no reference to K.K. Dhawan’s case
(supra) in the later decision of the Apex Court rendered in the case of
Ramesh Chander’s case (supra), the legal position as enunciated in its
earlier decision in K.K. Dhawan’s case (supra) shall still have a binding
force.
11. Learned counsel for the High Court/respondent no.1 further
submitted that any violation of principle of justice or any illegality or
irregularity in holding the enquiry was nowhere alleged in the writ
petition; the disciplinary authority had recorded reasons for dissenting
from the findings of the Enquiry Officer with regard to article of charge
6
no.1 and a show-cause notice was also issued to the petitioner in this
regard; as such the finding recorded by the disciplinary authority cannot
be interfered with in exercise of the extraordinary jurisdiction under
Article 226 of the Constitution. Reliance was placed in this regard on the
two decisions of the Apex Court rendered in the case of Union of India
and others Vs. Upendra Singh (1994)3 Supreme Court Cases page
357 and High Court of Judicature At Bombay through Registrar Vs.
Shashikant S. Patil and another reported in (2000)1 Supreme Court
cases page 416. Attention was drawn particularly to the following
observations made by their Lordships in para 17 of the judgment in the
case of Shashikant Patil (supra), wherein the Apex Court reiterated the
legal position laid down in the case of State of A.P. Vs. S. Sree Rama
Rao (AIR 1963 Surpeme Court page 1723) thus:-
“The High Court is not constituted in a
proceeding under Article 226 of the Constitution
as a Court of appeal over the decision of the
authorities holding departmental enquiry
against a public servant: it is concerned to
determine whether the enquiry is held by an
authority competent in that behalf and
according to the procedure prescribed in that
behalf and whether the rules of natural justice
are not violated. Whether there is some
evidence, which the authority entrusted with
the duty to hold the enquiry has accepted and
which evidence may reasonably support the
conclusion that the delinquent officer is guilty of
the charge, it is not the function of the High
Court in a petition for a writ under Article 226
to review the evidence and to arrive at an
independent finding on the evidence.”
12. Lastly, learned counsel for the High Court/respondent no.1
submitted that the report of the Enquiry Officer was not binding on the
disciplinary authority and the disciplinary authority was empowered
under law to disagree with any of the findings of the Enquiry Officer and
could record its own findings and therefore, the action taken by the
disciplinary authority after issuance of a show cause notice to the
petitioner and consequent imposition of penalty on him, did not call for
any interference in the writ jurisdiction.
13. We have considered the rival submissions of the learned
counsel for the parties.
14. There can be no dispute to the legal proposition that the
disciplinary authority can disagree with the findings of the Enquiry Officer
7
on any article of charge and can record its own finding on the said charge
after recording the reasons for its disagreement. Rule 15 Sub Rule 2 of
the M.P. Civil Services (Classification, Control and Appeal) Rules, 1966
also provides the same, which reads thus:-
“The disciplinary authority shall, if it
disagrees with the findings of the inquiring
authority on any article of charge, record its
reasons for such disagreement and record
its own finding on such charge, if the
evidence on record is sufficient for the
purpose.”
15. The Apex Court in its three Judges’ Bench decision rendered
in the case of Shashikant S. Patil (supra) also held that the findings of
the Enquiry Officer are not binding on the disciplinary authority as the
decision-making authority is the punishing authority and, therefore, that
authority can come to its own conclusion and it is also not necessary that
the disciplinary authority should discuss the materials in detail and
contest the conclusions of the Enquiry Officer.
16. A perusal of show cause notice (Annexure P-17) dated
1.6.1996 issued by the High Court/disciplinary authority to the petitioner
reveals that it contained elaborate reasons for disagreement with the
finding of the Enquiry Officer, as to article of charge no.1, also indicating
that there was sufficient material on record, and the case diary
statements of witnesses disclosed prima facie case for framing of a
charge under Section 302 of IPC against the accused in S.T. No.213/93.
Thus it is manifest that the High Court reversed the finding of the
Enquiry Officer with regard to article of charge no.1, which related to
discharge of the accused under Section 302 of IPC by the
petitioner/Judicial Officer, after recording reasons on the basis of the
material available on record and recorded its own findings against the
petitioner finding him guilty for charge no.1.
17. On perusal of the judicial order in question (Annexure P-24)
dated 30.9.93 passed by the petitioner in S.T.No.213/93 discharging the
accused under Section 302 IPC, we find that it is a detailed order wherein
the petitioner has assessed and evaluated the evidence in detail as if he
was writing a judgment of acquittal and has gone even to the extent of
assigning some hypothetical reasons for discharging the accused, which
was not warranted at the stage of framing of charge. The law is well
settled that at the stage of framing of charge the Court is not to see
8
whether there is sufficient ground for conviction of the accused or
whether trial is sure to end in his conviction. The Apex Court in the case
of State of Bihar Vs. Ramesh Singh reported in AIR 1977 Supreme
Court page 2018(1), has observed that if there is a strong suspicion
against the accused at the initial stage of framing of charge, which leads
the Court to think that there is ground for presuming that the accused
has committed an offence, in that event it is not open to the Court to say
that there is no sufficient ground for proceeding against the accused.
18. In the aforesaid facts and circumstances, the judicial order
(Annexure P-24) passed by the petitioner in S.T.No.213/93 discharging
the accused under Section 302 of IPC by weighing and evaluating the
evidence and considering the possibility of his innocence, suffered from
patent illegality, being contrary to the settled principle of law and thus
could form the basis of disciplinary proceedings in view of the legal
position enunciated in K.K. Dhawan’s case (supra) as well as in the case
of Ramesh Chander (supra). we are, therefore, unable to accept the
submission of learned counsel for the petitioner that the judicial order in
question (Annexure P-24) could not form the basis for initiating
departmental enquiry against the petitioner.
19. In view of factual and legal position as described
hereinabove, it was competent for the disciplinary authority, i.e.
High Court, to take a dissenting view from the findings of Enquiry Officer
and to record its own finding on the basis of material available. Mere
non-challenge of the order in question by way of appeal or revision or
suo-moto revision, could not be an impediment in taking disciplinary
action against the petitioner on the basis of an order, which was patently
illegal. As said hereinabove, a show cause notice was issued by the
disciplinary authority to the petitioner vide Annexure P-17 in respect of
the disagreement with the finding of the Enquiry Officer and recording its
own finding of guilt against the petitioner in respect of the article of
charge no.1, as also proposing the penalty; as such it could not be said
that there was any violation of principle of natural justice. It is also
manifest from the record that the reply (Annexure P-19) to show cause
notice dated 1.6.96 was also submitted by the petitioner before the High
Court. It was a detailed reply, therefore, it could not be said that the
petitioner was deprived of the opportunity of hearing. In the aforesaid
facts and circumstances, personal hearing of the petitioner was also not
necessary.
9
20. The submission of learned counsel for the petitioner that
there was no proof that the judicial order (Annexure P-24) was actuated
by any corrupt or improper motive, also sans merit in view of the law laid
down by the Apex Court in the case of Shashikant S. Patil (supra).
21. In the wake of reasons recorded by the High Court in
Annexure P-17 as to finding of guilt of the petitioner with regard to the
charge no.1, in the disciplinary proceedings relating to illegal discharge of
the accused under Section 302 of IPC in S.T.No.213/93 by him, the view
taken by the High Court that the order (Annexure P-24) was actuated by
improper motive, and consequent imposition of the penalty of withholding
of two increments of the petitioner without cumulative effect vide
order Annexure P-20, which was a minor punishment, passed by the High
Court/respondent no.1, after holding due enquiry and giving proper
opportunity of hearing, in the peculiar facts and circumstances of the
case, does not call for any interference in exercise of writ jurisdiction of
this Court.
22. As regards non-granting of the selection grade to the
petitioner, as communicated to him by (Annexure P-23), the petitioner
never made any representation before the High Court against this
communication. Moreover, a perusal of the extract of minutes of
High Court’s Full Court Meeting, (Annexure R-1) dated 20-4-96 reveals
that after consideration of the ACR’s, other materials and over all
performance of the petitioner, he was not found fit for grant of selection
grade. It does not appear to be an offshoot of the order
(Annexure P-20), which was passed subsequently. For the foregoing
reasons and in absence of any representation against the communication
(Annexure P-23) regarding unsuitability of the petitioner for the selection
grade in Higher Judicial Services, no interference is called for in the
decision taken in the Full Court Meeting of the High Court, as per
Annexure R-1, communicated to the petitioner vide Annexure P-23.
23. Thus, no case for interference in the orders
(Annexure P-20 and P-23) is made out.
The writ petition being devoid of merit is hereby
dismissed. No costs.
(Krishna Kumar Lahoti) (Smt. Sushma Shrivastava)
Judge Judge
11/01/2011 11/01/2011