P.K. MISRA, J The brief facts of the case are as follows :-
The petitioner was initially appointed as an Examiner in the Office of the District Munsif, Melur, and in course of time he was promoted to the post of Head Clerk and subsequently posted as Copyist Superintendent in the District Court, Madurai, in October, 1992. A charge-memo was issued against him in June, 1993, alleging that he had demanded and received bribe on several occasions. In the charge-memo five such instances have been indicated. Even though enquiry was conducted by the Principal District Judge himself, who was the disciplinary authority, the order of punishment of compulsory retirement was passed by the Chief Judicial Magistrate as the file relating to the disciplinary proceedings were placed before him. The said order of punishment was challenged by the petitioner by filing W.P.No.5429 of 1994, which was allowed by order dated 17.3.1993, quashing the order of compulsory retirement on the sole ground that the Chief Judicial Magistrate was not the appropriate authority to impose such punishment. While allowing the writ petition, the High Court remitted back the matter to the Principal District Judge for fresh disposal. After such direction was issued by the High Court, the petitioner, who was compulsorily retired with effect from 3.2.1994, was reinstated in service by order dated 30.6.1999 and resumed duty thereafter. Subsequently, the Principal District Judge, Madurai, by order dated 31.8.1999, passed the order of compulsory retirement. Subsequently, by order dated 26.11.1999, the interregnum period between 4.2.1994 and 30.6.1999 was treated as leave. The petitioner had filed W.P.No.8127 of 2001 against the order of punishment. The said writ petition was permitted to be withdrawn with liberty to the petitioner to file an appeal in the Administrative Side, namely, the High Court. Thereafter, the appeal dated 20.8.2001, filed by the petitioner, was rejected by order dated 20.9.2002. Thereafter, the present writ petition has been filed challenging the order of compulsory retirement dated 31.8.1999 and the subsequent order dated 26.11.1999, treating the period from 4.2.1994 to 30.6.1999 as leave.
2. Learned counsel for the petitioner has contended as follows :-
(1) The first order dated 3.2.1994, passed by the Chief Judicial Magistrate compulsorily retiring the petitioner has been quashed by the High Court in the earlier round of litigation and the matter has been remitted to the Principal District Judge for fresh consideration and, therefore, the Principal District Judge should have afforded an opportunity of personal hearing to the petitioner or at least should have called upon the petitioner to make his submission in the form of written representation relating to various charges. In this connection, learned Senior Counsel has placed reliance upon the decision of the Supreme Court reported in 2008(6) Supreme 87 (STATE BANK OF INDIA & OTHERS v. RANJIT KUMAR CHAKRABORTY & ANOTHER).
(2) In the enquiry report prepared initially by the the then Principal District Judge, the allegations contained in Charge Nos.1, 2 and 4 had not been proved, whereas on the basis of the similar materials he has held that Charge Nos.3 and 5 had been proved. In the above background it is submitted that the reasons for which the Principal District Judge had discarded the allegations contained in Charge Nos.1, 2 and 4, similar allegations contained in Charge Nos.3 and 5 should have been discarded. It is further submitted that since the Association of the Advocates' clerk was very much prejudiced against the petitioner, the allegations had been made with a view to victimize the petitioner and, therefore, the conclusion of delinquency on the part of the petitioner in respect of Charge Nos.3 and 5 should be quashed as no reasonable man could have come to such a conclusion.
(3) Third contention of the learned Senior Counsel is to the effect that the order of compulsory retirement passed by the Chief Judicial Magistrate, who not being the disciplinary authority, had no jurisdiction to impose punishment. Therefore, when such order was set aside, it must be deemed that the petitioner was continuing in service all along and, therefore, the disciplinary authority committed an illegality in passing the subsequent order dated 26.11.1999, treating the period from 4.2.1994 to 30.6.1999 when the order of specific order of reinstatement was issued as leave admissible. According to the learned Senior Counsel for the petitioner, the entire period should be treated as on duty and he should be paid entire backwages for the said period.
(4) Even assuming that delinquency had been proved, in view of the fact that previous record of the petitioner was free from all blemish, the order of punishment of compulsory retirement passed for transgression on two instances, which came to be passed just one month before the normal date of superannuation of the petitioner, should be quashed as being grossly disproportionate.
3. Learned counsel appearing for Respondent No.1, on the other hand, has refuted the contentions raised by the petitioner and submitted that keeping in view the background of the case and the nature of allegations as proved in the departmental proceedings, the punishment of compulsory retirement should not be interfered with.
4. The first and foremost contention of the learned Senior Counsel for the petitioner relates to the question of natural justice. Learned Senior Counsel has contended that the earlier order, dated 3.2.1994, passed by the Chief Judicial Magistrate having been quashed by the High Court and since the matter was remitted to the disciplinary authority for fresh consideration, the disciplinary authority should have afforded an opportunity of hearing to the petitioner. In support of such contention, learned Senior Counsel has placed reliance upon the decision of the Supreme Court reported in 2008(6) Supreme 87 (cited supra).
5. In the present case, the Principal District Judge himself was the disciplinary authority and the enquiry had been conducted by the Principal District Judge. The Principal District Judge had found the petitioner guilty in respect of two charges relating to demand and acceptance of bribe for issuance of certified copy of various orders of the Court. At that stage, however, the disciplinary authority instead of dealing with the proceedings himself, had placed the concerned records before the Chief Judicial Magistrate to pass appropriate orders. The order of compulsory retirement passed by the Chief Judicial Magistrate was found vulnerable by the High Court on account of the fact that the Chief Judicial Magistrate was not the disciplinary authority competent to impose punishment and, therefore, such order was non-est in law. Thereafter the matter was remitted to the Principal District Judge, who himself is the disciplinary authority.
6. It is of course true that enquiry was earlier conducted by the the then Principal District Judge and ultimately the matter came to be decided by another Principal District Judge. The question is whether the Principal District Judge was required to give any further opportunity of hearing. In this context one has to remember that "opportunity of personal hearing" has many shades of meaning. At the maximum level such opportunity of hearing may include the opportunity of making oral submission either by the person concerned or through his Advocate. Under certain circumstances, opportunity of hearing would only include opportunity of making submission by a written representation. It is not the case of the petitioner that as per the rules relating to disciplinary proceedings applicable to Judicial Ministerial Service, a full-fledged enquiry akin to a trial in Civil Court is contemplated. In other words, even though the basic requirement of giving opportunity of cross-examination and adducing evidence is available, it cannot be said that there is any requirement of giving opportunity of hearing or making oral submission, though there is no embargo for giving such expanded opportunity of even making oral submission.
7. In the present case, a perusal of the final order passed by the Principal District Judge after the matter was remitted by the High Court indicates that the entire enquiry proceedings including the report of the enquiry officer dated 22.11.1993, further representation of the petitioner dated 12.12.1993, proceedings of the Chief Judicial Magistrate, the order of the High Court dated 17.3.1999 remitting the matter and the subsequent representation of the petitioner dated 16.8.1999, had been placed before the Principal District Judge for consideration. Even though the Principal District Judge could have considered all the five allegations afresh, it appears that he confined his attention only to Charge Nos.3 and 5, which had been held to be proved against the petitioner on earlier occasion.
8. The Principal District Judge, who is the disciplinary authority, thereafter re-affirmed the adverse findings contained in the report of the disciplinary authority-cum-enquiry officer. The disciplinary authority has also referred to the further representation made by the delinquent and it is apparent that the disciplinary authority has accepted the conclusion of the enquiry officer. It is not the case of the petitioner that, on earlier occasion, copy of the enquiry report had not been furnished nor his case was that opportunity of hearing had not been given at that stage. Under these circumstances, we do not think the contention of the petitioner that opportunity of hearing had not been afforded to him can be accepted.
9. Learned Senior Counsel has placed reliance upon the decision of the Supreme Court reported in 2008(6) Supreme 87 (supra). In the said decision, the disciplinary authority, who had held the enquiry, had come to a conclusion regarding guilt of the delinquency of the person, but according to such disciplinary authority major punishment was required to be imposed, which was not within his jurisdiction and, therefore, he placed the records before the appointing authority for imposition of major penalty. The appointing authority, before whom the matter was placed, had not given opportunity of hearing to the petitioner. This was found to be vulnerable by the High Court and ultimately the Supreme Court confirmed such decision of the High Court by observing as follows :-
"5. In this case the respondent was punished with a major penalty was not heard. Therefore, the order of removal was set aside. We have been taken through the Rule 68(3)(iii) and we are in full agreement with the view taken by the High Court. When the Disciplinary Authority is not competent to pass a major penalty, that is, of the removal or other major penalty prescribed in the Rule, the papers are require to be placed by the Disciplinary Authority to the Appointing Authority who is competent to pass a major penalty. In the present case Disciplinary Authority was not competent to pass major penalty, therefore, matter was placed before the Appointing Authority & Appointing Authority passed major penalty of dismissal without hearing delinquent. Such order which is on the face of it is against the principles of natural justice, cannot be countenanced as it is void ab initio. The proviso certainly says that the Appointing Authority, on the recommendation given by the Disciplinary Authority, shall be competent to pass the major penalty. Simply by recommending the matter and sending the papers to the Appointing Authority, does not mean that the incumbent who is going to be served with the major penalty is not required to be heard in the matter. It is now well settled principle that where ever the Rule is silent the principles of natural justice shall be read in it. A hearing should be given to a person who is being punished with a major penalty. Therefore, the principle of natural justice has to be read in this Rule. A notice ought to have been issued to the delinquent by the Authority to whom papers were sent to show cause why the major penalty may not be imposed on him. It is true that the competent authority could pass the order of major penalty but not without hearing the incumbent. Therefore, in this context of the matter, we are of the opinion that the view taken by the Division Bench of the Calcutta High Court is correct and there is no ground for interference in this appeal."
10. We do not think the ratio of the aforesaid decision can be made applicable to the present case. The records reveal that on earlier occasion when the disciplinary authority himself had enquired, the petitioner had been given adequate opportunity as contemplated under the Rules and after report had been prepared by the disciplinary authority, findings were placed before the Chief Judicial Magistrate for imposing punishment. Copy of the report had been given to the petitioner, who had made his representation on the findings. Since the High Court found that Chief Judicial Magistrate had no jurisdiction in the matter, the matter was remitted to the Principal District Judge. It is thus apparent that whatever representation the petitioner had to make relating to the enquiry report had already been made by the petitioner in the shape of representation and all such matters were placed before the Principal District Judge after the case was remitted to him by the High Court. Under these circumstances, we do not think that there has been any violation of principles of natural justice. The ratio of the Supreme Court decision is not applicable to the facts of the present case.
11. Next contention of the petitioner relates to acceptability of the findings rendered by the disciplinary authority-cum-enquiry officer in the first instance, which had been reaccepted by the disciplinary authority after the matter was remitted. The basic contention is that no reasonable man could have come to such a conclusion. For making such a submission, learned Senior Counsel has submitted that in respect of similar charges as contained in Charge Nos.1, 2 and 4, the Principal District Judge has discarded the allegation and the very same logic was applicable to Charge Nos.3 and 5. Since other charges had been held to be not proved on the basis that witness was an interested person as the Advocates' Clerk Association was against the petitioner, the very same logic should have been made applicable.
12. We regret our inability to accept such submission made by the learned Senior Counsel. Law is well settled that the High Court, while dealing with disciplinary proceedings in writ jurisdiction under
Article 226 of the Constitution, cannot sit as an appellate authority. In the present case, the disciplinary authority had given adequate reasons to come to the conclusion that the allegation of acceptance of bribe as contained in Charges Nos.3 and 5 had been established, while making reference to evidence on record. It is not the case of the petitioner that the conclusion is based on no evidence. The contention is that such evidence should not be accepted because of the prejudice on the part of the witness or prejudice on the part of the Advocates' Association. In a certiorari proceedings, we are not expected to go beyond such finding unless such finding is perverse or based on no evidence. Moreover, the High Court on its administrative side in appeal has confirmed the conclusion of the disciplinary authority. It also cannot be said that the conclusion of the High Court is based on no evidence. Under these circumstances, we are unable to accept the submission made by the counsel for the petitioner.
13. Third submission made by the learned Senior Counsel to the effect that since the petitioner was on verge of normal retirement, the order of compulsory retirement was uncalled for and grossly excessive. The disciplinary authority has found that the two allegations which had been accepted by the disciplinary authority related to the question of acceptance of bribe. The petitioner was working in the Judicial Department. Keeping in view the background of the case and the fact that the petitioner was working in a responsible department, which is mainly expected to safeguard the interest of the litigant public, it cannot be said that the order of compulsory retirement was disproportionately excessive. Such contention is also not acceptable.
14. Last contention raised by the petitioner, however, stands on a stronger footing. The petitioner was compulsorily retired by the order passed by the Chief Judicial Magistrate, who had in fact no jurisdiction to deal with the matter. The High Court has found that such order of the Chief Judicial Magistrate was invalid and, therefore, the matter was remitted to the appropriate disciplinary authority, namely, the Principal District Judge. It must be taken that the order of compulsory retirement was non-est in law and, therefore, the petitioner must be deemed to have been in service from the date on which such void order was passed till the subsequent valid order was passed by the Principal District Judge.
15. The Principal District Judge after passing the impugned order of punishment, subsequently passed an order treating the period from 4.2.1994, when the first order of compulsory retirement was made effective, till 30.6.1999, when the order of reinstatement was passed, as on leave.
We do not think this subsequent order passed by the Principal District Judge can be upheld as, in our opinion, the petitioner must have been deemed to be in service all along as a void and non-est order has been passed by the Chief Judicial Magistrate on earlier occasion. Therefore, the entire period between 4.2.1994 and 30.6.1999 shall be treated as period on duty and it can be only observed that the petitioner was compulsorily retired only with effect from the subsequent order dated 30.6.1999.
16. Next question is regarding payment of salary for the aforesaid period. If the petitioner would not have been directed to be compulsorily retired by a non-est order, he would have normally continued in service and would have received his dues. On the other hand, the fact remains that he had not worked for the said period. If the petitioner would have been suspended, he would have received 50% of the wages as subsistence allowance. However, in such an event the disciplinary authority, who had the jurisdiction, would have treated the period of suspension in any manner as contemplated as in law. Even the disciplinary authority possibly could have treated that such period of suspension shall not be counted as part of duty which would have ultimately affected the amount of pension to be received by the petitioner.
17. Having regard to various factors, we feel interest of justice would be served by observing that though the entire period shall be treated as on duty, the petitioner would not be entitled to entire backwages, but he would be paid 25% of the backwages for the said period.
18. In the result, the writ petition is allowed in part. While upholding the order of compulsory retirement, we modify the order passed by the disciplinary authority as well as the appellate authority and hold that the entire period shall be treated as on duty, but the petitioner shall be paid only 25% of the backwages payable for the period from 4.2.1994 to 30.6.1999. No costs.
dpk To
1. The Principal District Judge, Madurai.
2. The Registrar General, High Court, Madras