IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11253 of 2009 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and HONOURABLE MR.JUSTICE N.V.ANJARIA ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ RAMESH P VAGHELA Petitioner(s) Versus STATE OF GUJARAT & 1 Respondent(s) ================================================================ Appearance:
PARTY-IN-PERSON, ADVOCATE for the Petitioner(s) No. 1 GOVERNMENT PLEADER for the Respondent(s) No. 1 LAW OFFICER BRANCH, ADVOCATE for the Respondent(s) No. 2 MR SHALIN N MEHTA, ADVOCATE for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI and
HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 29/10/2012 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE N.V.ANJARIA) The petitioner was a judicial officer serving as a Joint District Judge in the cadre of District Judge. He was subjected to two departmental inquiries one after another for various charges of misconducts in discharging his duty as Judicial Officer. Ultimately, respondent No.2 Disciplinary Authority rendered a common decision dated 24th March, 2009 in respect of both the inquiries and imposed penalty of dismissal under Rule 6(8) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter referred to as “the said Rules”). The respondent No.1 thereupon issued Notification dated 04th May, 2009 dismissing the petitioner from service.
1.1 In the present petition filed under Article 226 of the Constitution, the petitioner has prayed to set aside the said Notification dated 04th May, 2009 issued by the respondent No.1, as also the final decision dated 11th November, 2008/24th March, 2009 of respondent No.2. It is further prayed to reinstate him in service with full backwages and continuity of service with all consequential benefits by regularizing the period of suspension and to treat the said period of suspension as on duty.
Factual Matrix
2. The basic facts as well as relevant dates and events may be outlined. The petitioner joined the services on 06th May, 1993 in the cadre of District Judge at the age of 43 years as direct recruitee from the Bar. He was initially appointed as Joint District Judge and served on the said post at Surendranagar, Palanpur, Bhavnagar and Rajkot. After the Report of Shetty Commission, his designation was changed as Additional District Judge.
2.1 While he was serving at Bhavnagar, first Departmental Inquiry No.12 of 2001 was instituted on 12th December, 2001, in which the Inquiry Officer submitted his report on 09th January, 2004. After issuance of charge-sheet on 12th December, 2001, the petitioner came to be suspended by order dated 20th March, 2002, while he was serving as Joint District Judge, Rajkot. In that inquiry, three-fold charges were leveled. The first charge was that the petitioner did not deliver the judgments for considerable long time after hearing of arguments. The second charge was that the petitioner granted bail in 13 cases of serious offences without considering the settled principles and guidelines laid down by the Hon'ble Apex Court as well as by this High Court in the matter of granting of bail to accused. Another limb of second charge viewed as a third charge, was that the petitioner in granting bail, unduly favoured two advocates, named Mrs.Hetaben H. Shah and Mr.M.M. Bhatt.
2.2 The Departmental Inquiry No.12 of 2001 was conducted by the Inquiry Officer of the cadre of Additional Principal Judge, City Civil Court, Ahmedabad. Seven witnesses, whose names are mentioned in paragraph 3.4 of the memo of the petition, were examined. Several documents were produced. The petitioner examined himself and other witness one Shri Chudasama. Statement of defence dated 13.03.2002 and another statement of defence dated 20.11.2003 were submitted by the petitioner during the course of the inquiry.
2.3 After the Inquiry Officer submitted his report on 09th January, 2004 holding that the charge No.1 was not proved, but the other charges were proved, respondent No.1 took tentative decision on 29th October, 2004 to impose penalty of dismissal. The same was served upon the petitioner along with a show cause notice dated 15th April, 2005 and the petitioner received the same on 19th April, 2005.
2.4 At this juncture, pending completion of the first inquiry, second Departmental Inquiry came to be instituted against the petitioner on 23rd February, 2005 in connection with the alleged irregularities committed by the petitioner during the same period while he was serving as a Joint District Judge, Bhavnagar. In that inquiry, statement of charges contained as many as 17 imputations.
2.5 The petitioner filed his reply on 26th July, 2009. In the said second Departmental Inquiry No.01 of 2004, learned Judge of respondent No.2-High Court of Gujarat was appointed as an Inquiry Officer, who gave his detailed Report exonerating the delinquent petitioner from the charges except Charge No.4, 10 and 13. These three charges were held to be partly proved in the inquiry report.
2.6 As per the case of the petitioner stated in the memorandum of petition, after receipt of the said Inquiry Report submitted on 11th January, 2007 by the Inquiry Officer, the respondents did not initiate any action for long. It was only on 25th April, 2008 a tentative decision was taken by the respondent No.2 and the same was sent to the petitioner on 07th May, 2008, as stated by the petitioner. It was sent along with a show cause notice in which the respondent No.2 Disciplinary Authority disagreed with the findings of the Inquiry Officer. The petitioner was called upon to show cause as to why he should not be dismissed from service. According to the Disciplinary Authority’s tentative decision out of 16 charges, 10 charges were proved against the petitioner and therefore, it was stated that major penalty under Rule 6 of the said Rules was required to be imposed on the petitioner. The said show cause notice was replied by the petitioner on 24th June, 2008 with detailed submissions in defence.
2.7 The respondent No.2 took final decision in response to both the above Inquiries by a common decision dated 24th March, 2009 and ordered penalty of dismissal of the petitioner from service. On the basis of the said decision, the respondent No.1 issued Notification dated 04th May, 2009, which was communicated to the petitioner vide letter dated 05th May, 2009. During pendency of the present petition, the petitioner attained the age of superannuation on 28th February, 2010.
3. The petitioner appeared in person and made submissions. Learned senior advocate Mr.Shalin Mehta assisted by learned advocate Mr.Hemang Shah appeared for respondent No.2 and learned Assistant Government Pleader Mr.Utkarsh Sharma represented the respondent No.1. Heard the petitioner party-in-person as well as learned counsels for the respondents at length.
Charges in First Inquiry
3.1 Proceeding to consider the charges levelled against the petitioner in Departmental Inquiry No. 12 of 2001, the charge No.1 was not proved, hence need not be discussed here. The second charge, which related to granting of bail in different cases, was that the delinquent had ignored the settled principles and guidelines in granting bail by the Court to the accused and the bails were granted in undeserving cases. It was inter alia stated that in the matter of serious crimes, in order to ensure that the accused is available for trial and the course of trial is not obstructed by tampering with or destroying the evidence at the instance of the accused, releasing accused person on bail in all cases cannot be justified. The charge referred to different judicial decisions and set out circumstances which should govern the orders of granting bail. In such context, it was alleged against the petitioner that the manner and mode in which he granted bail in different matters with a view to favour two advocates showed that the bail orders were passed for consideration other than judicial and thereby (a) he was guilty of indulging in corrupt practice; (b) he was guilty of dereliction in discharging his judicial duty; and (c) he acted in a manner unbecoming of a judicial officer. A list of cases from Serial No.1 to 13 was produced. It was also alleged that the delinquent officer extended favour to two advocates in passing the bail order/s.
3.2 The above charge was sought to be refuted by the petitioner in his statement of defence dated 13.03.2002 on various grounds, which were repeated by him in his reply to the disagreeing finding recorded by the Disciplinary Authority. The petitioner party- in-person by referring to the submissions in the said reply, contended that in such type of charge, which was allegedly granting orders of bail wrongly, in order to judge on the charge, one has to scrutinize the merits of the judicial order in each case. He submitted that such an exercise in the Departmental Inquiry was not permissible, as the function of the domestic tribunal is administrative, and the inquiry officer did not perform the function of appellate court on judicial side. The party-in-person raised a preliminary objection to the very nature of the imputations, and pointed out that it was inter alia stated that “the legislation in its wisdom has given some precise directions for granting or not granting bail”. The statement of imputation further stated that in certain type of cases “it would be rather unwise” and “it would be improper to release”. The party-in- person therefore submitted that the charge as framed lacked in the very fundamentals inasmuch as there is no legislation which has given any direction regarding granting or non-granting of bail, and that whether granting of bail in a given case is proper or unwise is in the realm of judicial discretion and such imputations cannot be the basis for alleging misconduct unless the extraneous considerations are shown, which is not the case.
Submissions of parties in respect of charge in First Inquiry
3.3 The petitioner party-in-person took the court through his statement of defence and submitted on the basis of contents thereof that where there is unreasonable delay in completion of trial occurs, the accused would become entitled to bail as his liberty would stand violated by prolonged custody pending the trial. It was submitted that as case of default bail under sec.167(2) of Cr.P.C., other considerations would not apply. References was made to the decisions of the Supreme Court in R.B. Upadhyay Vs State of Andhra Pradesh (1996 (3) SCC 422), Abdul Rehman Antule Vs R.S. Naik (AIR 1992 (2) SC 1701), Bipin Shantilal Panchal Vs State of Gujarat (2002 (1) GLR 355), Hussainara Khatoon Vs State of Bihar (AIR 1979 SC 1360), Kadra Pehadia Vs State of Bihar (AIR 1981 SC 939), Shaheen Welfare Association Vs Union of India (AIR 1996 SC 2957). The party-in-person submitted that even in cases under the NDPS Act, 1985, right to speedy trial for the accused has been emphasized. On the basis of the above, the party-in- person contended that the different orders passed by him granting bail alleged as the acts of misconducts, were not misconducts, but they were an exercise of judicial discretion as per his best judgment. He submitted that even if other view is possible with regard to the discretion exercised by him for granting the bail, the order could not have been subject matter of departmental action, particularly when there is nothing to show that there was any extraneous consideration or the orders were motivated obliquely. It was submitted that the selection of 11 cases were a pick and choose exercise and thereby it was attempted to show that two particular advocates were favoured.
3.4 With regard to the allegation about extending favours to particular advocates, he denied to have done any favour. He submitted that initially it was in Sessions Case No.71 of 1998 wherein application Exhibit 25 was filed by a junior advocate seeking release of the accused on the ground of delay in trial and it was in course of the hearing of that application that the requests were made by the members of the Bar and thereafter the other cases were listed subsequently in view of the requests of other advocates. He next submitted that some of the orders of bail granted by him out of those cases were challenged before the High Court and the applications of the State were dismissed. The other orders of bail were being similar and having been passed on the same ground, they would have met the same fate. They were not challenged by the State, perhaps for that very reason, according to the pary-in-person.
3.5 The Party-in-person referred to two bail applications being Item Nos.12 and 13 in the statement of imputation, and submitted that they were the cases wherein the accused were released on bail not on the ground of delay but on merits. Bail Application No.1121 of 1999 at Serial No.12 was filed after charge-sheet, in succession to the previous Bail Application No.836 of 1999, which was before charge- sheet. The allegation was that applicant No.3 was released on bail without proper identification and advocate Shri M.N. Bhatt was favoured. It was submitted that if he wanted to do any favour to the advocate, he would have granted bail to all the four applicants. It was submitted that it was on judicial application of mind that he released one of the four accused and the new ground was not brought to his notice. The other Bail Application No.227 of 2000 was preceded by Bail Application No.168 of 2000 before charge-sheet. The earlier Bail Application was rejected because the medical report sent by the jail authorities was to the effect that the no surgery was required and the accused was advised to take rest for six weeks with regular follow up. In the subsequent bail application there was a report by the jail superintendent pursuant to a meeting of the Core Committee comprising of the District Magistrate, the District Superintendent of Police, the Sessions Judge, the Additional Sessions Judge and the Jail Superintendent, which was held pursuant to the directions of the Supreme Court. The report showed that the applicant was totally bed-ridden and his condition was precarious to such an extent that even for answering the call of nature, he had to take assistance of other prisoner and because of that the Jail Authorities were facing peculiar difficulties. It was submitted that in view of such facts obtained, the accused was released on humanitarian grounds, for which learned Additional Public Prosecutor had given “no objection” and the no objection was noted by the petitioner Judicial Officer in his notes.
3.6 Learned senior advocate for respondent No.2 submitted that the charges levelled against the petitioner Officer were in the nature of serious errors and irregularities in discharge of his judicial duties. According to him, the petitioner was a judicial officer and high standards of dispensation of duties as a Judge were expected. He submitted that the charges levelled against him are required to be appreciated in that perspective. He further submitted that the petitioner granted bail contrary to the well recognised principles and such orders were passed not in one or two stray matters but as many as in 13 cases. It was submitted that the conduct certainly showed a negligent and irresponsible approach in discharge of duty as a Judicial Officer and it was a lack of caution in the minimum. It was submitted that when such acts were repeated, they were rightly treated as misconduct. Learned senior advocate for respondent No.2 relied on decision in Prashanta Kumar Sarkar Vs Ashis Chatterjy and another (2010 (14) SCC 496) to submit that the Supreme Court has laid down the factors to be borne in mind while considering the bail applications. The settled principles could not have been ignored consistently by the petitioner, submitted learned senior advocate.
Findings of Inquiry Officer
3.7 While holding the said charge to have been proved, the learned Inquiry Officer held that the delinquent had overlooked the guidelines laid down by Hon'ble the Apex Court for granting bail and that the delinquent, who was working as a senior judge in the District, was expected to be aware of the said settled provisions in the bail matters and could not have enlarged the accused on bail. According to the learned Inquiry Officer the said fact suggested that the delinquent was guilty of dereliction in discharging his function as a judicial officer and has acted in a manner unbecoming of a judicial officer. The relevant observations by the Inquiry Officer are extracted herein.
“34. … Thus, the approach of the delinquent on the perusal of the record which is produced before me, prima facie establishes that delinquent has over looked the guidelines laid down by the Honourable Apex Court as well as by the Honourable High Court in deciding the subsequent bail applications within a short span and after considering the applications on merits granted the bail to the concerned accused. The delinquent was working as a fairly Senior Judge in the District at Bhavanagar and was well aware of the settled legal position in the bail matters yet he enlarged the accused on bail without taking into consideration the basic guide lines laid down by the Honourable Apex Court i.e. the enormity of the charge, the nature of accusation, severity of the punishment which the conviction will entail etc., and granted the bail to the accused. The catena of decision rendered by the Honourable Supreme Court were also over looked by the delinquent in passing the order in bail matters. This fact goes to show that delinquent is guilty of dereliction in discharging his judicial function as a judicial officer and has acted in a manner unbecoming of a judicial officer.”
3.8 The Inquiry officer discussed the connotation ‘misconduct’ to conclude that the acts and conduct on part of the petitioner were in the nature of misconduct as there was a dereliction of duty.
“35. If we read the definition of MISCONDUCT as discussed in the Black’s Law Dictionary, 6th Edition then the Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Term ‘Misconduct’ when applied in act of attorney, implies dishonest act or attempt to persuade court to jury by use of deceptive or reprehensible methods, Thus, even when there is transgression of some established and definite rule of action then such transgression would also amount to MISCONDUCT or even if prima facie there is a Dereliction from duty then the same would prima facie established the MISCONDUCT on the part of the delinquent. …”
3.9 As stated above, during the pendency of the First Inquiry No.12 of 2001, Second Inquiry being Departmental Inquiry No.01 of 2004 was commenced. The final decision dated 11th November, 2012 of the respondent No.2 High Court-the Disciplinary Authority contained common decision providing that order of dismissal of the delinquent from service be passed in terms of Rule 6(viii) of the Gujarat Civil Services (Disciplinary and Appeal) Rules, 1971.
3.10 As far the charges in the First Inquiry discussed above are concerned, in the final decision dated 11th November, 2012, it is observed that it is true that the charge of corruption is not proved but same may not assume much importance in view of the finding of the Inquiry Officer on charge Nos.2 and 3 which were found proved. In the final decision, the Disciplinary Authority was of the view that there were circumstances which showed the conduct of the delinquent to be a misconduct. It was noted that the delinquent was senior judicial officer and was aware of binding effect of the decision of the Supreme Court, and that he was required to deal with the bail matters and the contents of the application in light of merits and change of circumstances. According to the final decision, since there were number of cases where delinquent erred, it showed careless approach on his part and it became unbecoming of a judicial officer. It was further reasoned that though the allegation of favouritism and corrupt practice are not proved, in the second Departmental Inquiry which was simultaneously considered. Similar charges were found proved.
3.11 In the final decision, in which the Disciplinary Authority considered the charges of both the inquiries and the findings thereon, in the ultimate conclusion recorded that on an overall view of the entire matter, it was apparent that the actions of the delinquent, though may appear to be in purported discharge of judicial duties, in fact it was otherwise. It was observed that the High Court-Disciplinary Authority was not concerned with correctness or legality of the decisions, but the conduct which was, according to final conclusion, was negligent and amounted to gross abuse of powers. It was concluded that the same was actuated by improper motive with a desire to oblige himself or unduly favour one of the parties. It was, therefore, observed that the delinquent was guilty of dereliction of duty, acted in a manner unbecoming of a government servant in capacity of judicial officer and deserved only major penalty.
Charges in Second Inquiry
4. Now, the charges in the second departmental inquiry No.01 of 2004 may be adverted to. They are considered for sake of convenience and for better comprehension, together with the findings of the Inquiry Officer and the reasoning of the tentative decision on the charge concerned. The full text of each charge is extracted therewith.
4.1 Beforehand the discussion on all the charges and findings thereon, the summary of charges which are held not proved/partly proved by the Inquiry Officer and the tentative decision of the Disciplinary Authority is indicated in the table below:
Text of Each Charge, Extracts from Inquiry Officer’s and Disciplinary Authority’s Tentative Findings and Gist of Final Decision
4.2 The charge 1 reads as under-
“It is found from the record that in Civil Misc. Appeal No.2 of 2001, arising from the order of learned Civil Judge (SD), Bhavnagar in Special Civil Suit No.315 of 2000, you had granted ex- parte ad interim injunction against the defendant. In this matter M/s.Sasta Shipping Limited and others had filed Special Civil Suit No.315 of 2000 in the Court of Civil Judge (SD), Bhavnagar against M/s.Noor Shipping Limited for specific performance of contract in respect of ship and simultaneously also applied for temporary injunction under the provision of order 39 Rule 1 and 2 of CPC, on 28.12.2000 and the ship was detained at Kandala Port by the interlocutory order passed by the Trial Court. In this case, ad interim order had been passed by you on 5.1.2001, whereby ship MV Noor was permitted to be brought from Kandala Port to Alang Port.
It is further found from the record that the learned Trial Judge had fixed the suit for hearing of injunction application day to day and in fact the suit was adjourned on 6.1.2001 for hearing of injunction application. So there was no necessity at all to suspend the order passed below Exh.5 in Special Civil Suit No. 315/2000 by the learned Trial Judge on 28.12.2000 and the Trial Court would have been directed to conclude the hearing itself within stipulated time.
It is further found from the Record that you had suspended the order of the Trial Court directing the defendant to maintain status quo by ignoring Section 26 of the Bombay Civil Court Act, which provides that in all the suits decided by a Civil Judge of which the amount or value of the subject matter exceeds Rs.50,000/-, the appeal from order or decision, shall be preferred to the Hon'ble High Court, you had passed an order knowing fully well that you were not competent to pass such order, nullifying on 6.1.2001, you had suspended suo motu your own order, admitting the fact that you were not empowered to entertain such type of appeal. Thus, both the orders came to be passed by you with an oblique motive and pre-determined purpose and in collusion with the appellant and by that way, you acted in a manner unbecoming of a Judicial Officer.”
4.2.1 The relevant extract from the findings of the Inquiry officer with regard to the above charge is extracted as under:
“22.8 It is also come on record that having thus passed order sometime in the evening of 5th January 2001, the Delinquent Officer recalled the order in the morning of 6th January, 2001 and such recall was made suo motu. He had also conveyed the recall of the order to the authorities and also called the learned advocate Shri Vyas for the plaintiff in the chamber and conveyed to him that by mistake he had passed the order on 5th January, 2001 which he had recalled. It has also come on record that by virtue of order dated 5th January, 2001 passed by the Delinquent Officer, the ship had not moved from Kandla as permitted.”
“22.10 It would therefore, emerge that though the Delinquent Officer did pass an order on 5th January, 2001, which order was without jurisdiction and in a matter which involved serious consequences and substantial stakes, his defense that the order came to be passed under mistaken belief of the appeal being competent before him, cannot be easily ruled out. Certain attendant circumstances making such defence plausible are that having thus passed order on 5th January, 2001, even before his interim order took effect and before defendant could cause the movement of the Ship out from Kandla, the Delinquent Officer himself on 6th January, 2001 in the morning itself recalled his interim order suo motu without any application or complaint from the plaintiff's side. In fact witness Shri M.G. Vyas (exh.1) in his cross examination admitted that he was called in the chamber by the Delinquent Officer at 11:30 in the morning on 6th January, 2001 and was informed that order came to be passed on 5th January, 2001 under mistake and that same has been recalled.”
“22.11 Thus taking all the circumstances into account, particularly, the action of the Delinquent Officer recalling his own order on 6th January, 2001 on his own account that too before the order was implemented, would make his defence, that the order came to be passed on 5th January, 2001 under mistake, quite plausible.”
“22.13 …. Considering these aspects of the matter and taking into considering all attendant circumstances noted here in above, I find that there is no sufficient proof of any direct involvement of the delinquent officer while passing the said order dated 5th January 2010 or of any oblique motive on his part in passing such an order. In my opinion therefore, charge Article 1 is not proved.”
4.2.2 In the tentative decision, the disciplinary authority has given the following reasons for disagreeing:
“The facts reveal that admittedly the delinquent officer did not have jurisdiction to entertain Civil Misc. Appeal No.2 of 2001 arising from order of learned Civil Judge (S.D.), Bhavnagar in Special Civil Suit No.315 of 2000 despite which the delinquent granted ex-parte ad-interim injunction against the defendants…”
“… The ship was detained at Kandla Port by virtue of the interlocutory order made by the Trial Court, despite which the delinquent, without hearing the other side, permitted movement of the ship from Kandla Port to Alang Port. Bhavnagar despite having himself recorded that there was a dispute as to privity of contract between the parties and after observing that whether status- quo order could or could not be granted, the question can be decided after hearing the parties. In other words, the order made by the Trial Court was liable to be disturbed only after hearing the parties, but, as can be seen, immediately thereafter status-quo order granted by the Trial Court was modified.”
“The factum of the advocate of the defendant (original plaintiff) having been called to the Chamber of the delinquent officer at 11:30 a.m. on 06.01.2001 and being informed that the order came to be passed on 05.01.2001 under mistake and that the order is recalled would itself indicate that the delinquent was aware about absence of jurisdiction, despite which an order permitting movement of the ship came to be made. This is not a case of mere erroneous order. The learned advocate for the appellant was Shri A.A. Oza and in relating to Charge No.2 there is a specific allegation that the delinquent has been favouring advocates Ms.Hetaben Shah and Mr.A.A. Oza along with two or three other advocates. Hence, the charge leveled has to be appreciated in the context that the order made on 05.01.2001 was with an oblique motive and predetermined purpose, in collusion with the appellant, through the advocate, and consequentially in a manner unbecoming of a judicial officer. The charge is accordingly held to be proved.”
4.2.3 In the final decision dated 11th November, 2012, the Disciplinary Authority agreed with the tentative decision. It was concluded by the Disciplinary Authority that the action in passing the interim order was sought to be explained away by seeking to draw a distinction that the Trial Court’s order did not relate to movement of the ship. It was further noted that there were no explanation as to why and how an occasion arose to recall the order on the next day morning and it was held that the reasons recorded in the tentative decision did not require any change or modification.
4.3 Charge No.2 was as under-
“It is further found from the record that 80 advocates of Bhavnagar Bar Association shown their unwillingness to conduct the cases in your Court on the ground of maintaining their own respect and impartiality of judiciary and there were consistent allegations against you that you were favouring advocates Mrs.Hetaben Shah and A.A.Oza and two or three other advocates and by that way you acted in a manner unbecoming of a judicial officer.”
4.3.1 The following is the relevant extract from the findings were arrived at by the Inquiry officer:
“23.8 Fact therefore, remains that as many as 80 advocates of Bhavnagar Bar Association had shown their displeasure about the manner in which the judicial officer was conducting himself in the Court. However, the department has not placed on record any specific instances of the Delinquent Officer insulting any advocate. Even witness Shri M.G.Vyas has not stated any specific instance in his deposition i.e. either before the Vigilance Officer when his statement was recorded or before the Inquiry officer when his oral deposition was taken. In his written complaints also, made to Hon'ble the Chief Justice of the High Court, no specific instances of the judicial officer misbehaving with any advocate have been cited. In his cross examination, he agrees that he had occasion to appear before the said Judge on only three or four occasions. Additionally, I also find that even in the complaint (exh.7) made by large number of advocates of Bhavnagar Bar Association, not a single specific instance has been given to show the rude behaviour on part of the Delinquent officer. … I find no evidence on record having been led by the department to establish the same. I therefore, hold that this charge in so far as it pertains to alleged behaviour of the judicial officer is concerned, is not proved. ”
4.3.2 In the tentative decision, the disciplinary authority has recorded the followings reasons for disagreeing “The charge itself was in relation to the unwillingness of the members of the Bar to conduct cases in the Court of delinquent for maintaining their self-respect and impartiality of judiciary. In other words, it was not only a case of rude behaviour but loss of faith in the delinquent resulting in withdrawal of all cases from the delinquent. This is not something which can be brushed aside as it would have serious repercussion qua the entire judiciary of the State. The charge that the delinquent had acted in a manner unbecoming of a Judicial Officer can definitely be said to have been proved.
4.3.3 The respondent No.2 Disciplinary Authority in its final decision held that it was not possible to accept the case of the delinquent that the documents at Exhibit 7 and Exhibit 8 could not be considered as their existence were accepted by the delinquent. The Disciplinary Authority was of the view that no change was required in the reasons recorded by the tentative decision.
4.4 Charge Nos.3,5,8 and 14 were held to be not proved by the Inquiry Officer as well as by the Disciplinary Authority. Hence, they are not required to be discussed.
4.5 The charge Nos.4, 10 and 13, which are held partly proved by the Inquiry Officer and held proved by the Disciplinary Authority are discussed in the last, after discussion on the rest of the charges.
4.6 Following was Charge No.6-
“It is further found from the record that on 20.2.2001 while Mr.B.D.Soni, the then District and Sessions Judge, Bhavnagar was on leave, you had transferred M.A.C.P.No.224 of 1996 from the file of the District and Sessions Judge(Shri Soni, main Tribunal M.A.C.P.) and as per order below Exh.48, amount lying by way of F.D. Was ordered to be released immediately wherein Mrs.Hetaben was representing the applicants. By that way you had acted in a manner unbecoming of a Judicial Officer and the said orders were passed by you for some consideration other than judicial one.”
4.6.1 The findings of the Inquiry officer with regard to the above Charge are -
“27.3 From the order exh.23, it can be seen that the award was passed in Motor Accident Claim cases on 13th December, 1996. By an order dated 4th September,1997 passed in Civil Application No.5890/1997 in First Appeal No.2052/1997, an amount of Rs.3,19,000/- were ordered to be kept in Fixed deposit whereas an amount of Rs.57,101/- was not covered by the said order. Nothing has been brought on record to suggest that releasing of the said sum in favour of the claimant was in any way irregular or unwarranted. Though stated in the charge that the Delinquent Officer transferred the Motor Accident Claim Petitions from the file of District and Sessions Judge in his absence, the Delinquent Officer has pointed out that since the District and Sessions Judge was on leave he himself was In-charge District Judge and he has passed the order on administrative side.
27.4 Considering the submissions made, I find that there is nothing on record to establish that the Delinquent Officer transferred the case with oblique motive or to favour Mrs. Hetaben Shah. In the conclusion, therefore, the charge is not proved.”
4.6.2 In the tentative decision, the disciplinary authority has given the following reasons for disagreeing:
“… The finding that there is nothing to establish that the delinquent transferred the case with oblique motive or to favour Mrs.Hetaben Shah cannot be accepted considering Charge No.2 as well as the fact that there is no evidence forthcoming to show what was the necessity of transferring this particular matter to the Court of the delinquent, especially when in relation to Charge No.15 and Charge No.16 the record reveals that the delinquent was not pronouncing the judgments / orders in judicial matters within the stipulated time as per provisions of the Civil Manual and Criminal Manual considering that the delinquent himself had published a notice stating that “because of inadequate strength of judges at Bhavnagar and because of workload it happens that the orders/judgments were not decided/pronounced within a stipulated time and therefore, advocates were requested not to contact him and also should not see him for that particular purpose.” Thus, when the delinquent was overburdened with matters falling within his own charge there was not occasion, no earthly reason to transfer a particular matter and pass an order allowing the application filed by advocate Mrs. Hetaben Shah. Furthermore, this is not a case of mere routine transfer on administrative side, but after transferring the matter to his Court the delinquent, in exercise of judicial powers, modified the order which had already been made on judicial side by releasing the Fixed Deposit. Hence, this charge also stands proved.”
4.6.3 In respect of above charge also, the Disciplinary Authority approved the reasoning in the tentative decision. It endorsed the view that the charge has to be considered in conjunction with charge Nos.2, 15 and 16. Agreeing with the tentative decision, in the final decision also, this charge shown to have been proved.
4.7 Charge No.7 was as under-
“It is further found from the record that in execution petition nos. 1 to 105 of 1999 pertaining to award came to be passed in land acquisition cases and amount to the tune of Rs. 54,79,000/- lakhs came to be deposited in the District Court by the State Government. The learned Government Pleader had requested to draw the attention of its office at the time of withdrawal, even though you had refused to inform the District Government Pleader office and without joining heirs of original applicants in many cases, disbursement had been made to the power of attorney of the deceased and approximately payment to the tune of Rs. 46,15,179/- lakhs had been made accordingly and by that way, you acted in a manner unbecoming of a Judicial Officer and the said orders were passed with oblique motive for some consideration other than judicial one.”
4.7.1 The extract from findings of the Inquiry officer with regard to the Charge are reproduced herein.
“28.4 It is true that admittedly no written request was made by the Government Pleader for prior intimation before releasing the amounts deposited towards payment of compensation. The witness Shri. H.N. Andharia in his cross examination also admitted that such deposits were made unconditionally and not under protest. He also agreed that there is no rule for prior intimation once the amount is deposited unconditionally. Fact however, remains that the Delinquent Officer has not challenged the version of this witness that the oral request was made. In the cross examination of the witness this averment has not been challenged. It would thus, appear that though the oral request was made for prior intimation, the Delinquent Officer disbursed the land acquisition compensation amounts to the claimants and in some cases to their advocates as Power of Attorney Holders without prior intimation to the Government Pleader.
28.5 The fact however, remains that it is not the case of the department that there was any stay by higher Court against such disbursement at the relevant time or passed shortly thereafter. Though it is sought to be suggested that disbursements were made also in cases where the claimants had expired, there is no evidence on record with respect to this aspect of the matter.
28.6 The charge if perused closely states that without informing the District Government Pleader, the Delinquent Officer permitted the disbursements and without joining heirs of original claimants in the claim cases, such disbursements have been made to the Power of Attorney Holder of the deceased. Since I find that there is no evidence to establish that disbursements were made in cases of claimants who had expired, this charge cannot be held to have been proved.
28.7 One aspect of the matter however, needs to be noted and it is this, as observed earlier despite request from the Government Pleader, disbursements were made without intimation to the office of the Government Pleader. It has also come on record that in some cases disbursements were made in favour of Power of Attorney holders who were the advocates of the claimants. In my view, the Delinquent Officer was required to take appropriate steps to verify that the compensation was being received by the claimants. However, since this is not a part of the charge leveled against the Delinquent Officer, I refrain from making any further observations in this regard.
28.8 In the result, subject to above observations, I find that charge is not proved.”
4.7.2 The Disciplinary authority has given inter alia the following reasons “As can be seen from the charge itself the charge is that more than Rs.54,00,000/- came to be disbursed in land acquisition cases after the amount was deposited in the District Court by the State Government, without intimating the Government Pleader, who had admittedly orally requested to draw the attention of the Office of the Government Pleader at the time of withdrawal and even then the delinquent had refused to inform. The deposition of Mr.Harit N. Andharia, learned Government Pleader, stated that this was the normal procedure adopted by the Office of the Government Pleader. The fact that the deposit of the awarded amount is made without any protest or without any written request for intimation prior to disbursement would not take away the requirement of the necessity of the Court being informed about the status of further proceedings, if any. Similarly, merely because subsequently it is found that there are no proceedings pending at the time of inquiry, the delinquent cannot be absolved of his responsibility.”
“The charge has another angle to it. The delinquent is charged with having disbursed amounts in favour of the advocates by A/c. Payee Cheques, drawn in the name of advocates on the strength of Power of Attorney and not to the claimants directly. The learned Inquiry Officer has read this part of the charge to mean that in absence of any evidence that the original claimants had expired, or that there was any evidence that legal heirs were required to be joined, mere payment to Power of Attorney Holders would not be sufficient to bring home the charge. The learned Inquiry Officer has failed to appreciate that whether the disbursement have been made to the Power of Attorney Holder of the claimants or the deceased claimants would not make any substantial difference. The import of the charge is that payments were not made to the original claimants but to advocates as Power of Attorney Holders. Therefore, there is definitely lack of the quality of performance expected of the delinquent. Once it is found that out of total amount of Rs.54,79,000/- a sum of total amount of Rs.46,15,179/- is disbursed in favour of Power of Attorney Holders of the claimants, deceased or otherwise, it would definitely indicate that such orders were made with an oblique motive for consideration other than in the course of discharge judicial duties. The delinquent cannot be absolved from this charge merely on the technical plea that there was no necessity to inform the Office of the Government Pleader before making disbursements. Hence this charge also stands proved.”
4.7.3 In the final decision, it was reasoned while treating this charge to have been proved that the Court is not expected to act in a mechanical manner while ordering the disbursement as the law is well settled that it is required to be ascertained that the compensation is not received by any other person than the original claimant. It found that the delinquent had erred in passing orders of disbursement of the compensation amount, therefore, the explanation of the delinquent was not found acceptable and in the final decision also the Disciplinary Authority concurred with the reasons recorded in the tentative decision
4.8 The following was Charge No.9-
“It is further found from the record that advocate Shri Hemendra has filed RCS No. 228/99 (advocate for the plaintiff) and advocate Hetaben was representing the defendant and when the suit was pending for hearing of injunction application, without any application being filed under Section 24 of the CPC by either side and that the District and Sessions Judge was on duty or in head quarter, you without issuing notice or without giving opportunity of being heard to the plaintiff, transferred the said suit in the Court of Second Joint Civil Judge (SD) as per request of advocate Mrs. Hetaben shah and by that way you acted in a manner unbecoming of a Judicial Officer and order was passed by you for some consideration other than judicial one.”
4.8.1 These are Conclusions of the Inquiry Officer:
“30.3 Having perused the evidence on record and having taken into account the submissions made, I find that though it is true that the Delinquent Officer passed the said order transferring a regular civil suit from one Civil Judge (SD) to another, there is nothing on record to establish that the same was done with oblique motive or mala fide intention or to favour a particular advocate. Neither in the oral evidence nor through the documents, department has been able to establish that any undue favour was shown to the applicant or his advocate. The Delinquent Officer in charge of his administrative powers has passed the said order. Without there being any material on record, allegation of Delinquent Officer having acted in a manner unbecoming of judicial officer, cannot be sustained. The charge in my view is therefore, not proved.”
4.8.2 In the tentative decision, the disciplinary authority has given the following extracted reasons for disagreement.
“The record itself reveals that the order dated 25.08.1999 transferring Regular Civil Suit No.288 of 1999 from the Court of civil Judge (S.D.), Bhavnagar to the Court of 2nd Joint Civil Judge (S.D.), Bhavnagar, is not an order of routine transfer in exercise of administrative powers. In fact the order has been made on the basis of an application dated 28.01.1999 moved by Shri Bharatbhai Balabhai of Sanosara, the defendant in the suit. The advocate of the defendant was Mrs.Hetaben Shah. Therefore, the order has been made on the basis of an application for transfer moved by one of the parties to the litigation and could not have been made in exercise of administrative powers; the order of transfer could not have been made without hearing the other side; the application moved by the defendant ought to have been treated as an application under Section 24 of the Code of Civil Procedure, 1908. This charge has to be appreciated also in context of charge No.2 wherein there is an allegation against the delinquent of favouring Mrs.Hetaben Shah and passing unwarranted orders in matters wherein Mrs.Hetaben Shah appeared as an advocate. Therefore, this charge is held to be proved.”
4.8.3 The Disciplinary Authority while passing the final decision did not accept that the order of transfer under Section 24 of the Code of Civil Procedure was exercise of powers on its own motion and therefore, did not require notice to other side, as sought to be submitted by the delinquent, because there was an application moved by the defendant for the purpose of transfer. The Disciplinary Authority on such basis, did not deviate from the findings recorded in the tentative decision.
4.9 The following was Charge No.11-
“It is further found from the record that advocate, Shri Manubhai Vyas has filed a Criminal Misc. Application No. 201 of 2001 wherein accused persons came to be arrested for commission of offence under Section 506 (2) of IPC, which came to be posted for hearing in your Court. Thereafter, Mr. Vyas, Advocate requested to transfer the matter in any other Court because he had ventilated grievances against you in writing, but his application for adjournment had been rejected by you and by ex parte hearing, you had dismissed the said application and, by that way you and passed an order with an oblique motive for some consideration other than judicial one and acted in a manner unbecoming of a judicial officer.”
4.9.1 The relevant findings of the Inquiry officer with regard to above charge are as under:
“32.3 It may be noted that on 9th March, 2001 when the applications for adjournment on the ground of transfer were being made, the learned District and Sessions Judge had already rejected such an application on 8th March, 2001. It may thus be noted that in his subsequent application exh.33 though it was stated that an application for transfer is being made on 8.3.2011, it was not pointed out that the application had been rejected by the learned District and Sessions Judge on the same date. Thus unfortunately, full facts were not brought to the notice of the Delinquent Officer. However, when the Delinquent Officer passed his first order at exh.27 and once again rejected a fresh application exh.33, he was admittedly not aware that the transfer application filed by the advocate has been rejected by the learned District and Sessions Judge. In fitness of things, therefore, he should have shown restraint and at-least granted an adjournment to permit the litigants to pursue their remedies. Nothing has been brought on record to show that the application was required to be decided immediately and no delay could be brooked. This may though demonstrate a degree of impropriety and impatience on part of the Delinquent Officer, I do not find that there is any evidence on record to suggest prejudiced mind of the Delinquent Officer against the learned advocate. Significantly, in his statement exh.4 recorded by the Vigilance Officer or in his deposition, advocate Shri M.G.Vyas has not made any reference to these orders passed by the Delinquent Officer.”
32.4 In the result, I find that charge is not proved.”
4.9.2 In the tentative decision, the disciplinary authority has given the following reasons for disagreement.
“It is not a case of simple rejection of an adjournment application pending an application for transfer. This is a case where the applicant has, or more particularly, the learned advocate for the applicant has indicated, by the very nature of application, loss of faith in the particular Judge, namely, the delinquent. Once this was the position, to maintain the decorum of the Court and the high standards of judicial conduct, the delinquent ought to have refrained himself from proceeding with the matter instead of rejecting the application. Again, this is a case where application also came to be rejected without hearing. This is not a simple case where a request for adjournment was rejected and merely because subsequently the transfer application was rejected by the Principal District Judge the conduct of the delinquent cannot be condoned. Therefore, this charge has to be appreciated in context of Charge No.2 wherein more than 80 advocates had shown their willingness to conduct cases in the Court of the delinquent on the ground of maintaining their self-respect and impartiality of judiciary. Therefore, this is once again a case of the delinquent acting in a manner unbecoming of a judicial officer. The charge stands proved.”
4.9.3 In the final decision, the Disciplinary Authority took view in respect of this charge inter alia that the facts depicted that there was loss of faith in the delinquent. It was reasoned that a particular advocate had requested the delinquent that he should not hear the matter as the said advocate had ventilated grievance against the delinquent in writing, the delinquent ought to have granted the adjournment and should not have taken up the case. By not doing so, it was concluded in the final decision, that the delinquent failed to maintain self-respect and impartiality of judiciary and acted in manner unbecoming of a judicial officer. No departure was accordingly made from the reasons recorded in the tentative decision and the charge was held proved.
4.10 Following was Charge No.12-
“It is further found from the record that you were in habit of passing remarks against the members of bar in the presence of litigants regarding their professional capabilities and you were almost humiliating most of the advocates in open Court by passing uncalled insulting remarks regarding the Competence and integrity of the advocate and by that way, you acted in a manner unbecoming of a Judicial Officer.”
4.10.1 The relevant findings of the Inquiry officer with regard to above charge are these.
“33.4 On perusal of the evidence on record and considering the submissions made, I find that neither in the charge-sheet nor through the evidence on record any specific instances of rude or insulting behaviour brought are on record. While the department has examined two senior advocates of Bhavnagar Bar to suggest that the treatment of the Delinquent Officer to the members of the bar was not befitting and that he was insulting or ill-treating the members of the bar on numerous occasions, at-least some attempt could have been made to bring on record some specific instances of such kind. However, there is evidence of two witnesses on record to support the allegations. In fact to the testimony of Shri H.N.Andharia on this count, there is no cross examination at all. In addition thereto, the department has also produced on record the complaint signed by 80 advocates of the Bar suggesting that the behaviour of the Delinquent officer towards the member of the Bar was not proper. I am unable to accept the contention of the Delinquent officer that in absence of any documentary evidence such allegation should not be accepted. By the very nature of things, such allegations are unlikely to have documentary proof. Nevertheless, in my view the department also failed to pinpoint the exact nature of misbehaviour of the Delinquent Officer or to bring on record specific instances of such kind.”
“33.5 The observations of the Hon'ble Supreme Court in the case of K.P.Trivedi v. State of M.P. reported in AIR 1994 SC 1031, may be referred to in this regard.
33.6 In the result, I so not find that there is sufficient evidence to establish the charge and same is therefore, held not proved.”
4.10.2 The disciplinary authority has given the following reasons for disagreement with tentative decision.
“The learned Inquiry Officer himself has recorded that in this regard Shri Harit N. Andharia, Government Pleader was examined by the presenting officer and there is no cross-examination. The statement (Exh.10) of Shir Andharia specifically records that the behaviour of the delinquent towards advocate is insulting; that the delinquent insults even senior advocates disregarding their age and seniority. Once this statement by a learned advocate is available on record without any cross-examination, namely, there being nothing to dislodge the aforesaid statement, there is no need for any further evidence. The evidence is sufficient.”
“The learned Inquiry Officer records that he is unable to accept the contentions of the delinquent; that in absence of any documentary evidence such allegations should not be accepted, and further goes to state that by the very nature of things, such allegations are unlikely to have documentary proof. If this be the position where is the question of rejecting by stating there is no documentary evidence. This has to be appreciated in context of Charge Nos.11 and 12 wherein learned advocates have voiced their grievance. In relation to Charge No.10, in paragraph No.31.10 of the report, the learned Inquiry Officer has himself recorded that the delinquent had in his written statement of defence conceded that the delinquent may have shown impertinence with the concerned advocate.”
“Hence, as already noticed hereinabove, in relation to Charge No.2, once the record reveals that the Principal District Judge was required to withdraw all cases from the delinquent it is not necessary that the department must pinpoint the exact nature of misbehaviour of the delinquent or to bring on record specific instance when admittedly the statement of witness of the department Shri Andharia has gone unchallenged. Why should a learned advocate, who is Government Pleader, be disbelived in such circumstances – what more specific instances should one require. This charge stands proved.”
4.10.3 In the final decision, Disciplinary Authority took the view that the statement of Shri Andharia (Exhibit 10) was sufficient even without any cross-examination, as there was nothing to dislodge, to conclude that the delinquent insulted advocates disregarding their age and seniority. It was stated that such allegations would be generally without proof, and further reasoned that the allegation could be appreciated in the context of Charge Nos.11 and 12 where the advocates have voiced their grievance. The final decision also stated that it was not necessary to pin-point the exact nature of misbehaviour and to show specific instances.
4.11 The Inquiry Officer considered Charge No.15 and Charge No.16 together in his findings.
Charge No.15 is as under-
“It is further found from the record that you were was not pronouncing the Judgments/orders in the judicial matter which have already been heard by you within a stipulated time as per the provisions of Civil and Criminal Manual.”
Charge No.16 is as under-
“It is further found from the record that as per confidential letter No. B/124/2001 dated 23/3/2001 by the then District and Sessions Judge, Bhavnagar, wherein reference was made of ten cases wherein judgments/orders were not delivered and has also sent xerox copy of last proceedings of respective matters which were pending for delivering the orders/judgments since long time. It is pertinent to note that on 21/6/2000, you yourself had published notice stating that “because of inadequate strength of judges at Bhavnagar and because of workload it happens that the orders/judgments were not decided/pronounced within a stipulated time and therefore, advocates were requested not to contact him and also should not see him for that particular purpose.” By that way, you acted in a manner unbecoming of a Judicial Officer. Thereby, you failed to maintain absolute integrity.”
4.11.1 The findings of the Inquiry Officer as regards charge Nos.15 and 16 are as under:
“36. These charges somewhat overlap. They have therefore, been clubbed together for consideration. Broadly stated the charges pertain to impropriety on part of the judicial officer in not pronouncing the judgments and orders in matters already heard by him within stipulated time as per the provision of Civil and Criminal Manual. They refer to a notice published by him suggesting that because of inadequate strength of Judges in Bhavnagar and because of workload, it may happen that orders/judgment were not decided/pronounced within a stipulated time and, therefore, advocates were requested not to contact him and also should not see him for that particular purpose.”
36.1 At the outset, it may be noted that there is no evidence led by the department for these two charges in this inquiry. No specific instances have been pointed out where the Delinquent Officer did not adhere to any time schedule provided for pronouncements of orders. In fact, in his written brief, the Presenting Officer has not made any submission in support of these charges nor even has urged before me to hold that these charges are proved. This is so since the Delinquent Officer is justified in contending that the said charges overlap with charge no.1 of charge-sheet dated 12-12-2001 being Departmental Inquiry NO.12/2001 produced by the Delinquent Officer at Exh.32. Charge no.1 therein reads as follows :
“Charge No.1 As per the provisions contained in Paragraph- 462of the Criminal Manual, 1977 and Rule 641 of the Civil Manual, 1960 and the specific directions given by the High Court by its letters dtd. 30.3.82 and 13.4.89, all the Judicial Officers of the Subordinate Courts are duty bound to deliver the judgement within 15 days from the date of hearing of the arguments or to record reasons for not delivering the judgement within such time and also to send reports that effect to the District Judge, but you failed to comply with the said provisions/directions and number of matters were pending in your Court for delivering the judgements. Not only that, You had also displayed a Notice dtd.21.6.2000 on the Notice Board of your Court and thereby all the advocates were instructed not to inquire about the pronouncement of judgement or about the date for pronouncement of judgement and judgments would be delivered as per convenience.”
“36.2 In view of this position, I do not find it necessary to discuss the further this point before dropping the charges. It is clarified that these charges are held not proved in view of no evidence led in support of the charges and not on merits after evaluating evidence in this regard. I also find substance in the submissions of the delinquent officer that these charges overlap with Charge Article No.1 of Departmental Inquiry No. 12/2001 and that therefore, it is not open to try the delinquent officer regarding these charges under the present charge-sheet. In the result, charge nos. 15 and 16 held not proved.”
4.11.2 In the tentative decision, it was stated thus:
“As already noticed, these two charges admittedly overlapped with charge No.1 of Departmental Inquiry No.12/2001 and hence for the present, it is not possible to accept the finding of the learned Inquiry Officer.”
4.11.3 Accepting the tentative reasoning, in the final decision also, the Disciplinary Authority held that those charges were proved.
4.12 Charge Nos.4, 10 and 13 were held partly proved by the Inquiry Officer, but they were held proved by the Disciplinary Authority in his tentative decision. These three charges may now be considered.
4.12.1 Charge No.4 was as under:
“It is further found from the record that in the following MACP cases, wherein advocates Mrs.Hetaben Shah, A.K.Shaikh and advocate Nitaben Satani were appearing, huge amount had been disbursed by you, by passing favourable orders. Said cases are as under:”
M.A.C.P. No. Amount Date of Judgment (1) 721/99 5,06,894/ 6/01/2001
4.12.2 Findings of the Inquiry Officer with Regard to the Charge 4 are as under:
“25.3 At the outset, it may be noted that it is true that the amounts indicated under the charge pertain to amounts awarded to the claimants and not the amounts disbursed. However, upon perusal of the disbursement orders exh. 17 to 21, it clearly emerges that the Delinquent Officer disbursed substantial amounts in favour of the claimants. Such disbursements amounted to far more than 30% of the amount deposited by the opponents. Following is the table showing the particulars of orders passed:
“It can thus be seen that in above-mentioned claim petitions, the Delinquent Officer disbursed substantially large amounts in favour of the claimants. In some cases, disbursement amounted to 50% (or even more) of amounts deposited by the insurance companies.”
“25.5 …Thus, the disbursements made by the Delinquent Officer in the above mentioned cases certainly were higher than the judicial trend permitted.”
“25.6 To that extent, I find that the orders of disbursement passed by the Delinquent Officer were not justified. His assertion in specific reasons for making departure in specific cases were available in the concerned awards and that therefore, the charge cannot be established without producing such awards on record cannot be accepted. If the Delinquent Officer wanted to rely on the reasonings contained in the awards to justify unusually high percentage of disbursements in the said cases, it was well within his right to seek the production of such documents. Not having made any attempt to seek production of the documents, in my view, it is not open for him to urge that the department cannot press the charge in absence of such documents being on record. To the extent the said charge therefore, alleges high percentage of disbursement in said cases is in my view established.”
“25.7 The charge however, has another angle to it. It is suggested that such disbursements were made by the Delinquent Officer in cases pertaining to particular lawyers. I do not find that such element of charge is established from the record. Firstly, the department has placed on record five such orders passed by the Delinquent Officer. In the charge it is alleged that these orders pertain to advocates Mrs.Hetaben Shah, Mr.A.K. Shaikh and advocate Ms.Nitaben Satani. There is nothing on record to suggest that the Delinquent Officer passed such orders since the matters pertain to these particular advocates. There is nothing on record to suggest that such disbursements were to favour these advocates. In absence of any material on record, these allegations in my view remain unestablished.”
“25.8 In the result, the said charge is partially proved.”
4.12.3 In the final decision, the Disciplinary Authority did not accept the contention of the delinquent and it was viewed that merely because charge referred to names of three advocates, the facts and allegations cannot be overlooked. It was not accepted that orders of disbursement were administrative or ministerial and the delinquent ought to know the judicial trend.
4.12.4 In the Tentative Decision, The Disciplinary Authority has Given the Following Reasons for Disagreeing:
“As can be seen the charge is of favouring certain advocates wherein huge amount had been disbursed by passing favourable orders. The table forming part of the conclusion of the learned Inquiry Officer gives a clear picture that the disbursement is in violation of settled legal position. In fact the learned Inquiry Officer has accepted that, to that extent the charge is established. The record reveals that in all five matters advocate Mrs.Hetaben Shah was representing the claimants. Therefore, this evidence has to be appreciated in context of the allegation leveled against the delinquent vide Charge No.2. Though the learned Inquiry Officer in relation to the said charge has record that the allegations about favouritism shall be dealt with while discussing the individual specific instances while recording the findings in relation to this charge that aspect has been omitted from zone of consideration by recording that there is nothing on record to suggest that such orders were made by the delinquent since the matters pertain to these particular advocates. It is not possible to read each charge and record findings by delinking various charges wherein the facts and the allegations flowing therefrom are interlinked like in the present case. Hence, charge No.4 is proved.”
4.13 Charge No.10 was as under:
“It is further found from the record that in CMA NO. 23 of 2001 and 15 of 2001 caveats were filed or lodged by the respective respondents. You had not called upon the caveators and the caveators had not been heard before passing the order. You had granted interim stay order in favour of the applicants without being heard to the respondents though the caveats had been filed. Not only that, in this case, the returnable date had been fixed by you after considerable long period for three months and by that way, you had passed the order with an oblique motive for some consideration other than judicial one and you acted in a manner unbecoming of a Judicial Officer.
4.13.1 Findings of the Inquiry Officer with Regard to the Charge 10 are as under:
“31.14 In so far as Civil Misc. Appeal No.23/2001 is concerned, following facts emerge:
A) Admittedly, the Caveat was filed by the respondents. Deposit the Caveat, the Delinquent Officer passed an interim order on 26th February, 2001 granting status-quo order till 7th March, 2001.
B) Such order was passed without hearing the Caveator or his advocate.
C) On 27th February, 2001, an application seeking stay of the interim order passed by the Delinquent Officer and hearing the Caveator before passing further order came to be filed.
D) The Delinquent Officer rejected his application stating that the request is frivolous since status-quo is continued only till 7th March, 2011.
E) On this application, the advocate for the Caveator made an endorsement that the application is rejected without hearing him.
F) The Delinquent Officer made his noting stating that through oversight learned advocate for the Caveator was not heard.
G) Yet another application came to be filed by 9th March, 2001 by the Caveator seeking early hearing of the appeal.
H) This application also came to be rejected stating that due to pressure of work, it is not possible to hear the application before July, 2001.
I) On this order also advocate for the Caveator put his noting that application is rejected without hering him.
J) To the averment of the Caveator that ultimately the concerned appeal came to be rejected and final order thus came to be rendered in favour of the Caveator is not disputed.”
“31.15 … It is not even the defence of the Delinquent Officer that the Caveat was not brought to his notice by the Registry of the District Court. In fact, his only contention is that he passed the interim order on 26th February, 2001 without hearing the Caveator only through oversight. It may also be noted that after the Delinquent Officer passed interim order on 26th February, 2001, the Caveator made two attempts to have the interim order vacated or to have the appeal heard. To his application filed on 27th February, 2001 seeking stay of the interim order and granting him further hearing, the Delinquent Officer rejected the same observing that status-quo is to continue only till 7th March, 2001 by the Caveator requesting that the appeal be heard early, the Delinquent Officer rejected the same, observing that due to pressure of work, it is not possible to grant the early hearing. Thus quite apart from ignoring the Caveator before passing the interim order, at the outset, the Delinquent Officer also acted in my opinion in a somewhat high handed manner in rejecting the subsequent applications filed by the Caveator. Since this is not a part of the charge, nor is the Delinquent Officer confronted with this circumstances, I refrain from drawing any further conclusions based thereon. But the advocate for the Caveator has made his endorsement on both the orders stating that the applications have been rejected without hearing him. It is thus established that the Delinquent Officer passed the interim order ignoring a caveat.”
“31.16 Having heard the Presenting Officer as well as the Delinquent Officer and having perused the evidence on record, I however, find that the charge is that the orders were passed with oblique motive. I find that so far as this element of the charge is concerned, same is not proved. There is nothing on record to suggest that the order was passed with oblique motive. Apparently, the issue pertained to a telephone connection against which the Delinquent Officer had granted an order of status-quo. This is bone out from application dated 27th February, 2001 filed by the Caveator seeking stay of the order passed by the Delinquent Officer. Additionally, as per the say of the Delinquent Officer ultimately, the appeal came to be rejected and the Caveator succeeded. To this assertion of the Delinquent Officer, department has not raised any dispute. Considering the issues involved and considering the final verdict in the appeal rendered by the Delinquent Officer, I find that the charge of having passed the interim order with an oblique motive and for consideration other than judicial consideration, is not proved.”
4.13.2 In the Tentative Decision, The Disciplinary Authority has Given the following reasons for Disagreeing:
“The facts recorded by the learned Inquiry Officer itself go to show that this was not a case of some what highhanded behaviour but a deliberate design to ensure that an interim order made in favour of the plaintiff continued till the final disposal the appeal. The ultimate result of the appeal is not relevant, but, unfortunately, that has weighed with the learned Inquiry Officer. The charge against the delinquent was that the interim order had been made on 26.02.2001 in favour of the appellant- plaintiff without hearing the Caveator, though, admittedly, the caveat was on record. On 27.02.2001 an application seeking stay of interim order passed by the delinquent and for hearing the caveator before passing any further orders came to be filed by the caveator, but the application was rejected by the delinquent stating that the request is frivolous since status quo has been granted only till 07.03.2001. However, what is more shocking is that the application came to be rejected without hearing the applicant-caveator. The delinquent has accepted this fact on the specious plea that the applicant-caveator was not heard through oversight. Once more application came to be moved on 09.03.2001 by the caveator seeking early hearing of appeal. This application was also rejected without hearing the applicant-caveator.”
“Assuming that the interim order came to be made by losing sight of the caveat being on record yet when the applicant-caveator moved the Court the delinquent was duty bound to hear the applicant before passing any orders. Once again on the plea of oversight the application was rejected. The applicant-caveator moved another application which was also rejected without hearing the applicant. Therefore, this is not a case of highhanded behaviour but a case of gross abuse of powers. It is such conduct of a judicial officer which will shake the confidence of the litigants from the institution of judiciary. Such gross negligence cannot be countenanced and this is a conduct unbecoming of a judicial officer. The charge can accordingly be held to be proved.”
4.13.3 According to final decision, the conduct on the part of the delinquent in passing order without hearing the caveator was a case of abuse of powers, which would shake confidence of the litigants from the judiciary and that such rash negligence cannot be countenanced. With such reasoning, the Disciplinary Authority accepted the tentative decision in holding the charge to have been proved.
4.14 Charge No.13 was as under:
“It is further found from the record that in Criminal Revision Application No. 106 of 2000 came to be filed by one Usmanbhai Abdulbhai Mahima against Botad Nagrik Co-operative Ltd. Whereby application of Abdul to discharge him in a complaint filed under Section 138 of the Negotiable Instrument Act came to be dismissed by the learned JMFC, you without giving notice to the original complainant had practically allowed the revision application and quashed and set aside and order of learned Trial Court by observing that he was not issuing notice to the original complainant as he was remanding the matter to the Trial Court for hearing an application of discharge afresh and by that way, you had passed the said order with an oblique motive for some consideration other than judicial one and acted in a manner unbecoming of Judicial Officer.”
4.14.1 The relevant extract from the findings of the Inquiry Officer with Regard to the Charge 13 are reproduced hereunder:
“34.3. Having taken into account the evidence on record and submissions made, I find that it is an undisputed position that the Delinquent Officer allowed the revision application setting aside the order passed by the Magistrate without hearing, the complainant. Before the Magistrate, the complainant had succeeded in having the Discharge application of the accused rejected. It was thus clearly an order in his favour. For whatever legal reasons, if such an order was required to be set aside, it was a bare necessity that the complaint in whose favour the order was passed be heard. Under no circumstances the action of the Delinquent Officer of allowing the revision application in setting aside the order of Magistrate can be countenanced.“ “34.4. One may however, note that through material on record, it is difficult to call out any oblique motive on part of the Delinquent Officer. Even if there was any oblique intention on his part to pass an order setting aside the order of the Magistrate, same could as well have been passed after hearing the complaint giving it a legal facade. In my view, therefore, though it was wholly impermissible for he Delinquent Officer to pass order exh.28 without hearing the complainant and that the Delinquent Officer as a judicial officer should have been acutely conscious of these legal requirements, I fail to see any oblique motive on his part.”
“34.5 In this conclusion, the charge so far as it alleges that the Delinquent Officer passed an erroneous order is proved. The allegations of oblique motive or of having acted in a manner of unbecoming of judicial officer however, is not proved. In the result, charge is partially proved.”
4.14.2 The Disciplinary Authority has Given the following reasons for disagreeing:
“In light of the aforesaid conclusions, it is not possible to agree that the order has been passed only erroneously and without any oblique motive or by acting in a manner unbecoming of a judicial officer. Here is a case where the complainant had succeeded in having the discharge application of the accused rejected despite which in the revision application filed by the accused the delinquent has quashed and set aside the order of the Magistrate by remanding the matter back to the Magistrate without even hearing the party in whose favour the Magistrate had made an order. Even if one may accept, for the sake of argument, that the view taken by the delinquent could be the only view which might have been possible in the factual matrix, the judicial system envisages adherence to principles of natural justice. In other words, a party to the litigation, more particularly a party who is going to be directly affected, has to be heard without any reservation. Atleast an opportunity of hearing has to be provided. The facts of the present case show that the order was made ex-parte and this is against the settled legal position.”
“Once again this charge has to be appreciated in the context of the conduct of the delinquent in relation to Charge Nos.2 (complained of by nearly 80 advocates against the delinquent), Charge No.10 where orders were made without hearing the caveator, Charge No.11, where the application was rejected without hearing the learned advocate, Charge No.12 about insulting advocates. This shows a consistent conduct on the part of the delinquent in not only behaving in a rude manner but virtually flouting the settled legal position by giving go-by to the principles of natural justice, not maintaining judicial standards and by conducting judicial proceedings in a manner not permissible in law. Therefore, this charge is also proved.”
4.14.3 The Disciplinary Authority accepted the tentative reasoning and took view in the final decision that the order was not passed erroneously but it was an instance of delinquent acting in a manner unbecoming of a judicial officer. It was also reasoned that judicial system envisages adherence to principles of natural justice and delinquent had quashed and set aside the order of the Magistrate by remanding the same without hearing the party in whose favour the Magistrate had passed order. It was observed in the final decision that even if one accepts for the sake of argument that view taken by the delinquent was the only view possible in the factual matrix, opportunity of hearing has to be provided. The charge was thus held proved.
Submissions by Parties in Respect of Charges in the Second Inquiry
5. As regards the charges in the second inquiry No.01 of 2004 is concerned, the party-in-person submitted that it was vitiated by delay, which was not explained. He relied on decision of the Supreme Court in State of Madhya Pradesh Vs Bani Singh (AIR 1990 SC 1308) to submit that in absence of satisfactorily explanation for inordinate delay in issuing the charge-sheet, permitting the departmental proceedings to proceed causes serious prejudice. He further submitted that in the second inquiry he was exonerated from the principal charge of indulging in corrupt practice and/or favouritism.
5.1 Regarding charge No.1 relating to permitting movement of a ship by passing interim order, it was submitted by the party-in-person that after the order passed in the evening, no sooner did he realize that his Court has no jurisdiction in the matter, he on the next day morning itself at 11.30, called the plaintiff’s advocate and after informing him recalled the order suo motu. It was submitted that no injury was caused to any party, and there was no question of any extraneous consideration having played any role. With regard to charge No.2 that 80 advocates of the Bhavnagar Bar Association showed their unwillingness to conduct the cases in the court of the petitioner, it was submitted that the charge was not proved as the documents at Exhibit 7 and 8 could not have been relied on as their contents were not proved, nor except one advocate, any of the advocates who have put their signatures were examined. He submitted that in any view, the charge did not contain any specific allegation.
5.2 In respect of charge No.4, it was submitted by him that disbursement of amount in the motor accident cases was justified on peculiar facts and merely because it exceeded 30% of the total amount, the same cannot be termed as misconduct. With regard to charge No.6, which was about transfer of a plaint, he submitted that the matter was not “transferred”, but he passed the order acting as In-charge District Judge.
5.3 About charge No.7 that amount of acquisition compensation was disbursed in irregular manner to power of attorney holder of the claimants/advocates, it was submitted that there was no instance which showed or wherein complaint was received that the compensation amount had not reached to the genuine claimant. He submitted that there was no evidence to substantiate the charge except the bare and vague statement complaining that his office was not informed about the date when such orders were passed. The statement given by him was belated and could not have been relied on for any purpose, according to the petitioner.
5.4 Referring to charge No.9, the petitioner party- in-person submitted that the transfer of suit was no misconduct as Section 24 of the Code of Civil Procedure permitted the Judge to transfer the case of its own motion. With regard to charge No.10 which alleged that the petitioner had ignored caveat application while passing interim stay order, he submitted that it was due to sheer inadvertence and result of pressure of work and not intentional one.
5.5 About charge No.11, which contain allegation that the petitioner had rejected the application of the advocate for adjournment in bail application as the said advocate had made complaint against the petitioner to the District Judge. In that regard it was submitted by the petitioner that the application in question by the advocate concerned for transfer of bail application was rejected much prior in point of time and when the matter was called out before him, the said advocate was not even present and there was nothing to suggest that any judicial misconduct was committed by him. He submitted further that charge No.12 about passing humiliating remarks against the advocates was unaccompanied by any specific facts and was too vague to be accepted to treat it as misconduct.
5.6 With regard to charge No.13 it was submitted by the petitioner that he allowed the Criminal Revision Application as in the facts of the case, no notice was necessary and only one conclusion in law was possible. He submitted that there was neither any extraneous consideration, nor he can be said to have committed a misconduct otherwise.
5.7 The petitioner submitted that charge Nos.15 and 16 were the repeat of charge No.1 in the first inquiry that the petitioner was not pronouncing judgments within stipulated time. As in the first inquiry the said charge having not been proved, it could not have been reopened in the second inquiry without any material or evidence and the same ought to have been treated as not proved for the self-same reasons as rightly held by the Inquiry Officer.
5.8 The petitioner referred to the detailed submissions made by him in the statement of defence filed by the petitioner in response to the charge- sheet and in response to the tentative decision by the Disciplinary Authority.
5.9 Learned senior counsel for respondent No.2 on the other hand submitted that the court is required to take an overall view of the charges levelled against the petitioner delinquent, and in such context it is appreciable, according to him, that the petitioner was guilty of committing misconduct in discharge of his judicial duties. It was further submitted by the learned senior counsel that the connotation “conducting in a manner unbecoming of Judicial Officer” would have to be given a contextual meaning. He submitted that when the acts of misconduct are alleged against a Judicial Officer, the concept would receive a strict interpretation.
5.10 He relied on observations in V.R. Katarki Vs State of Karnataka and others (AIR 1991 SC 1241) that the conduct of a Judicial Officer drawn from the overall picture would be looked into and in appropriate cases it may be opened to draw inferences even from judicial acts. He relied on decision in Union of India Vs K.K. Dhavan (AIR 1993 SC 1478) for the preposition that an Officer who exercise his judicial or quasi-judicial power recklessly or negligently in order to confer undue favour on the person, is not acting as a Judge.
5.11 He also relied on the decision in General Manager, Kerala State Road Transport Corporation, Trivendrum Vs Susamma Thomas (Mrs.) and others (1994 (2) SCC 176) and submitted that the charge against the petitioner delinquent regarding excessive disbursement of compensation amount in accident claim cases was rightly held proved, as the delinquent failed to scrupulously adhere to relevant principles set out by the Supreme Court in that decision.
6. Having carefully considered the findings of the inquiry officer in both the inquiries and upon taking into consideration the reasons supplied in the tentative as well as final decision of respondent No.2-Disciplinary Authority in context of the scrutiny of facts relating to the charge and the evidentiary material on record, and having appreciated the respective contentions canvassed, no misconduct is found to have been committed by the petitioner officer. The reasons for that are enumerated hereinafter.
Conclusions on charges in First Inquiry
6.1 The charges related to passing orders in bail applications. In all 27 orders releasing the accused persons on bail on the ground of delay in trial were passed by the petitioner of which the disciplinary authority relied on 11 orders for furthering the charge of misconduct. The details of those 27 cases were given, it showed that the applications, which were decided on different dates in which different advocates appeared. The matters included the advocates other than the two advocates, whose names were mentioned in the charge of extending favour to them. The details of all these 27 cases are on record of the petition.
6.2 The total cases relied on were 13. The orders included orders of rejection, withdrawal as well as the orders of allowing or partly allowing of matters. The details of those cases are also on record of the petition.
6.3 At the outset, as can be seen from the findings recorded by the Inquiry Officer and thereafter by the Disciplinary Authority, evidently, there is neither any evidence nor it is indicated that the petitioner passed orders for any extraneous considerations or that he indulged into any corrupt practice.
6.4 In the next, the facet of the charge that the orders of bail were granted in order to favour particular named advocates, is really baseless. What transpires from the undisputed facts revealed from the record is that an application Exhibit 25 in Sessions Case No.71 of 1998 was filed by one advocate Mr.J.N. Lakkad praying to release the accused on bail on the ground of delay in trial, and when that application was being heard before the court of the petitioner a senior advocate Mr.R.I. Dave practicing in the Bhavnagar Sessions Court on the criminal side happened to be present. He and other advocates present in the court requested that the issue raised in the application of Mr.Lakkad would affect several other accused persons including his client, and they requested that all the matters be listed so that comprehensive submissions could be made by all concerned. In that request Mr.Lakkad also joined. Accordingly the matters were listed, the bail applications were decided on 10.09.1999 and identical orders were passed in all.
6.5 Furthermore, from the list of first set of 10 Bail Applications, it could be noticed that the matters were of different advocates and not of advocate Ms.Hetaben Shah and advocate Mr.M.N. Bhatt only. Therefore, on facts the charge that the bails were granted at the instance of particular advocates to favour them has no legs to stand. As discussed above, the application at Serial Nos.12 and 13 were decided on the ground of merits and not on the ground of delay in trial, wherein the petitioner is shown to have applied his judicial mind and passed the orders. Once this position is obtained, the correctness or otherwise of those orders on merits is not a germane consideration.
6.6 Given the aforesaid context factually established, there remains no premise on the basis of which the charge of misconduct could rest.
6.7 An Inquiry Officer performs an administrative function and in that capacity, he is not expected to sift the orders passed on judicial side by assessing merits thereof and to conclude that since they were not in consonance of principle, they constitute the acts of misconduct. The petitioner exercised his judicial powers to judge the matter and deemed proper to grant the bail on the ground which in his judgment was relevant consideration. For that, he could not be faulted with the charge of misconduct. The correctness of such orders can be tested judicially in the hierarchy of appeal.
6.8 This court is unable to subscribe to the conclusion on paragraph 4 and 35 of the Inquiry Report holding that since there was transgression of some established and definite rule of action then such transgression would amount to misconduct and was in nature of dereliction of duty amounting to misconduct on part of the delinquent. In Re vs Mohansinh Saini, Chairman HPSC (2010 (12) Scale 5), the Supreme Court observed that the term “misconduct” implies a wrongful intention and not a mere error of judgment. A misconduct is malfeasance and the improper conduct. Therefore, a mere wrong judicial order inadvertently passed or passed even after application of mind but not appreciating a settled principle, cannot per se tantamount to misconduct. The connotation misconduct has to be construed with reference to the nature of subject matter, the kind and capacity of a person against whom it is levelled.
6.9 In P.C. Joshi Vs State of Uttar Pradesh (2010 (3) GLR 2642 (SC)) also, orders made by a judicial officer granting bail were subject matter of a departmental inquiry, wherein the Apex Court observed that “In the present case, though elaborate inquiry has been conducted by the Inquiry Authority, 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 Inquiry 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 does not attribute any motive to him which is for extraneous consideration that he had acted in that manner.”
6.10 In view of above discussion, the charge on the petitioner that in granting the orders of bail, he committed any judicial misconduct or extended favour to particular advocates does not hold good. The Inquiry Officer clearly erred in treating the charge to have been proved. It is difficult to agree with the reasoning of the Inquiry Officer that digression from the established practice and the guidelines set out in granting bail was a misconduct. As discussed above, error on judicial side, howsoever stark it may be, cannot be characterized as a misconduct in absence of any proof of extraneous consideration or a corrupt practice and without any culpable intention being established against the Judicial Officer. In the facts of the present case, there is no iota of evidence that the delinquent indulged into any corrupt practice in passing such orders. When this element is conspicuously absent, it was wrong to hold that a judicial misconduct was committed by the petitioner or that he acted in any manner unbecoming of a judicial officer.
7. Having carefully considered the findings of the inquiry officer in both the inquiries and upon taking into consideration the reasons supplied in the tentative as well as final decision of respondent No.2-Disciplinary Authority, in context of the scrutiny of facts relating to the charge and the evidentiary material on record, and having appreciated the respective contentions canvassed, no misconduct is found to have been committed by the petitioner officer. The reasons for that are enumerated hereinafter.
Court's Conclusions on the Charges in Second Inquiry Conclusion on charge No.1
8. The first charge related to passing of interim order permitting movement of a ship for which the court of the petitioner was lacking jurisdiction. The disciplinary authority was of the view that the petitioner “suspended the order of the Trial Court directing the defendant to maintain status quo.” The same was factually incorrect inasmuch as the order did not amount to staying the movement of ship. The movement of ship was never stayed in the original order as can be seen from bare reading of the order of the Trial Court. The status quo ordered was with regard to the ‘title’ (ownership) and not with regard to the location of the ship at the Port. This was clear form the pleadings of the parties that the ship had already moved out of Kandla and was on way to Alang. Therefore, the disciplinary authority misconstrued the interim order and recorded its findings on such misconstruction.
8.1 It was a transparent conduct on part of petitioner-officer that after passing the interim order on 5.1.2001 in the evening, having realized that his court had no jurisdiction, he on the very next day on 6.1.2001, suspended the previous evening’s order. The petitioner officer on his own called learned advocate for the plaintiff in the chamber at 11.30 am and informed that the order was passed under mistake and the same was recalled. This conduct of the petitioner was indicative that he passed the order inadvertently. However, the conduct was misjudged by the disciplinary authority resulting into a finding that “that the order is recalled would itself indicate that the delinquent was aware of absence of jurisdiction, despite which the order came to be made.
Conclusion on charge No.2
9. Charge No.2 which was regarding the representation containing signatures of 80 advocates showing their unwillingness to conduct cases in the court of the petitioner. The ground was that they wanted to maintain the respect and impartiality in judiciary and that there were allegations against the petitioner of favouring the two advocates. In the proceedings of departmental inquiry, the said representation was a document required to be proved in accordance with the principles applicable so as to elicit the proof of the contents. Though the said document (Ex.7) was signed by 80 advocates, out of the total signatures only one was proved. No other advocates were examined. Furthermore, Ex.7 did not contain any specific particulars and had vague statements of general nature. Even if it is true that the strict rules of Evidence Act do not apply, for the purpose of relying on the said document, at least the preponderance thereof and the substance of contents thereof were required to be established.
9.1 For substantiating the charge No.2, reliance on document at Exhibit 8 was placed. That document was not mentioned in the show cause notice or the charge. Exhibit 8 was Office Order dated 18th August, 2001 whereby the District Judge, Bhavnagar withdrew criminal matters from the petitioner's court. By the said order, only criminal matters were withdrawn, which was purely an administrative action. Document Exhibit 8 was admittedly not part of list of documents, which was relied in inquiry proceedings, the same could not have been used to feed the number of charge levelled against the petitioner. In State of Haryana Vs Rattnam (AIR 1979 SC 1512) it is observed that all the materials, which are logically probative for a particular mind are permissible, though disciplinary authority and administrative tribunal must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Evidence Act.
9.2 Apart from the contention that the said document was not duly proved in the inquiry proceedings and it did not contain the signature of the District Judge, what is relevant to state is that the Disciplinary Authority relied on the said order Exhibit 8 stating that thereunder all the cases from the concerned judicial officer were withdrawn as per direction of the High Court and which was the result of improper conduct on his part. It could be appreciated that it was only because it was highlighted everywhere that all the cases were withdrawn from the court of the petitioner, The impression had that it has nexus with the conduct of the petitioner, on a close examination of the facts, it was not so. “The direction of the High Court”, which the disciplinary authority referred to while disagreeing with the inquiry officer, was not produced.
9.3 Not only that, criminal matters were withdrawn were reassigned to the court of the petitioner shortly after they were withdrawn. This charge does not provide any basis to sustain the allegation of loss of faith in the petitioner. The disciplinary authority erred in observing in tentative decision that, “this order (exhibit 8) itself go to indicate that it was a mere lack of tact but the nature of allegation was far more serious”. The conclusion in the final decision that by virtue of the said facts, the charge that, “the petitioner acted in a manner unbecoming of a judicial officer was proved” cannot be accepted.
10. Charge No.3 was held not proved, both by the inquiry officer and by the disciplinary authority.
11. Charge No.4 held to be partially proved by the inquiry officer and held proved by the disciplinary authority is discussed at later stage hereinafter.
12. Charge No.5 was held not proved, both by the inquiry officer and by the disciplinary authority.
Conclusion on charge No.6
13. As far as charge No.6 is concerned, it was about the petitioner having transferred a motor accident claim petition to his court and directing release of fixed deposit. Deferring with the report, in which this charge was held to be not proved, the disciplinary authority in the disagreeing reasons stated that it was not shown what was the necessity of transferring this particular matter.
13.1 The disciplinary authority proceeded under a misconception overlooking the fact that the matter was not transferred but the same was dealt with by the petitioner acting as in-charge District Judge. Thus, disagreement by the disciplinary authority was based on false premise. The Fixed Deposit, which was released was already matured in a petition, which was disposed of in December, 1996, Nazir had reported pursuant to the application submitted in October, 2000 that the Fixed Deposit had matured on 24th January, 2001. The petitioner passed order on 28th February, 2001, i.e. after the date of maturity, for releasing the payment, while acting as in-charge District Judge. In the facts and circumstances, the disciplinary authority had not found any reason whatsoever to hold the charge as proved as misconduct.
Conclusion on charge No.7 13.2. Charge No.7, held not proved by the disciplinary authority, was in connection with the compensation awarded by the petitioner in land reference cases. A limb of the charge was that attention of learned Government Pleader was not drawn at the time of disbursement. It was stated that the Government Pleader had made an oral request in that regard, which was not paid heed to by the petitioner. The petitioner was further charged that the compensation was distributed without joining heirs of legal applicant in many cases or was made to power of attorney of deceased.
13.3 A careful look at facts connected with this charge showed that disbursement was made in July, 1999. The Government Pleader Shri Andharia appears not to have raise any grievance at that time until his statement was recorded before vigilance officer in July, 2001. In his statement Exhibit 10, the Government Pleader Shri Andharia did not point out any instance where compensation did not reach the claimant. Evidence of Shri Andharia in the inquiry was recorded in February, 2006, wherein also he did not point out any particular case where the real claimant was deprived of the compensation. Further more, in his evidence (Exhibit 9) before the Inquiry Officer, he stated that, “I say that contents of my statement are true and I verify the same as true and correct.”
13.4 The above facts, namely, that there was no single instance showing that compensation had not reached the deserving claimant coupled with the evidence of Shri Andharia in the aforesaid statement, virtually partook, “no evidence”. The charge cannot be said to have been proved even going by the principle of preponderance of probability known to the departmental proceedings.
13.5 It needs be noted that the charge as framed did not mention that payments were required to be made to the claimants and that power of attorneys were not required to be paid the amount. The disciplinary authority however observed that such was import of the charge and held that misconduct was committed in disbursing the amount in favour of advocates by account payee cheques drawn on their name on the strength of power of attorney and not to the claimant directly.
13.6 The charge levelled in the departmental inquiry will have to be proved the way it is stated and in the manner framed. It is not permissible that the charge is read between-the-lines to hold it proved on the basis of whatever material or vice versa. It will be negation of natural justice. If the charge is held proved by showing something as proved, which was not the part of the charge, the charge cannot be said to have been proved. The charge has to be proved in its very aspect and facet as expressly framed.
13.7 Even otherwise, there was no material to show that there was a normal practice to inform the Government Pleader while disbursing the amount. The finding of the disciplinary authority therefore was not only unjustified, but factually imprecise when it is stated in the tentative decision, finally approved, that, “The deposition of Mr.Harit N. Andharia, learned Government Pleader, stated that this was the normal practice adopted by the Office of the Government Pleader and the Courts to ensure that at the time of disbursement, if there is any further appeal or stay pending against such disbursement the same can be brought to the notice of the concerned Judge.” In any view, there was no material except statement of Shri Andharia, the kind and nature of which is discussed above, to treat the charge as proved.
14. Charge No.8 was held not proved, both by the inquiry officer and by the disciplinary authority.
Conclusion on Charge No.9
15. Going to charge No.9, which was held not proved by the inquiry officer, found to have been proved by the Disciplinary Authority, the same is required to be judged in the context of finding of the inquiry officer that there was no material to establish that any oblique motive or malafide intention in connection with the charge in question. The charge was that the petitioner transferred a Civil Suit from the court of a Civil Judge in absence of any application under Section 24 of the Code of Civil Procedure, 1908. The inquiry officer concluded that the order of transfer was passed by the delinquent officer in exercise of his administrative powers. There was no reason for the disciplinary authority to take a different view without any justification or otherwise or any material contrary. Even it is kept aside whether the power exercised was administrative or judicial, Section 24 of the Code of Civil Procedure permitting the transfer provides that a Suit can be transferred either upon an application or by the court of its own motion. When the disciplinary authority observed that, “application ought to have been treated as an application under Section 24 of the Code of Civil Procedure, it did not lead to anything except substitution of a view of the disciplinary authority, which in no way a proof of the charge.”
16. Charge No.10 held to be partially proved by the inquiry officer and held proved by the disciplinary authority is discussed at later stage hereinafter.
Conclusion on charge No.11
17. This charge was that advocate Mr.Manubhai Vyas requested the petitioner to transfer his Criminal Miscellaneous Application to other Court on the ground that he had ventilated grievances in writing against the petitioner officer. The petitioner however refused the request for adjournment and dismissed the same. It was alleged that the said order passed with oblique motive and in passing the order the petitioner acted in a manner unbecoming of a Judicial Officer. On consideration of material relating to the charge, the inquiry officer came to conclusion that there was nothing on record to substantiate the charge, though the conduct could be seen as demonstrative of a degree of impropriety and impassions.
17.1 It is clear that the charge in substance was about rejection of an adjournment application pending application for transferring the criminal case. While holding this charge to have been proved, the disciplinary authority prefaced to mention in the tentative reasoning, which was finally endorsed to that, “this is one more instance where the delinquent officer has rejected the adjournment application”, even as no other similar instances are on record or shown to have taken place. The element of oblique motive or the consideration other than judicial, though alleged, remains a bald allegation. The inquiry authority noted, which discussion bear importance, therefore the same is reproduced herein, “.... on 9th March, 2001 when the applications for adjournment on the ground of transfer were being made, the learned District and Sessions Judge has already rejected such an application on 8th March, 2001. It may thus be noted that in this subsequent application exh. 33 though it was stated that an application for transfer is being made on 8.3.2001, it was not pointed out that the application had been rejected by the learned District and Sessions Judge on the same date. Thus, unfortunately, full acts were not brought to the notice of the Delinquent Officer.”
17.2 The advocate Mr.Vyas did not disclose that the application for transfer was rejected. It appeared that in view of suppression on part of the advocate of the above fact, the Disciplinary Authority in its tentative decision erroneously stated that “subsequently the transfer application was rejected by the Principal District Judge” although the rejection was not subsequent, but prior to the making of adjournment application. Therefore, the finding of the Disciplinary Authority was not led by correct facts, but was arrived at misguidedly. The holding of charge as proved by the Disciplinary Authority, therefore, was not justified.
17.3 In the reply by the petitioner, it was stated that though in the tentative decision, it was mentioned that the application adjournment “came to be rejected without hearing”, the same was not the charge and such allegation was not the part of the charge and no such allegation was made by the advocate. It was further noticed that advocate Mr. Vyas in his complaint to respondent No.2 and in his statement before vigilance officer did not make any grievance about this charge.
17.4 The disciplinary authority has further misdirected itself in seeking to substantive the above charge on the basis of and in the context of charge No.2 which was to the effect that 80 advocates has shown their unwillingness to conduct cases in the court of delinquent. Not only that, as discussed above, the said charge was vague and is not established, the present charge for the purpose of its proof has to stand on its own.
17.5 Such an approach of linking proof one charge to another on part of the Disciplinary Authority herein came to be noticed in respect of other charges also, as far as the present case is concerned. Such an approach cannot be approved in law. In the departmental inquiry eliciting proof for buttressing the allegation in one charge, from another charge is not permissible, unless the two charges are part of same event or transaction and thus, inextricably interwoven. A particular charge has to be proved independently, when on facts it is independent. For substantiating or for strengthen the proof for one charge, the facts or the proof of another charge cannot be imported.
Conclusion on charge No.12
18. This charge was about petitioner allegedly passing remarks against members of the Bar in present of litigants regarding their professions capabilities and it was alleged that the same was humiliating to the advocates. The inquiry officer for want of any such specific instances, rightly concluded that the allegation was not proved. However, the Disciplinary Authority held it proved on the reasoning that for such evidence documentary evidence would not be available. In the second the Disciplinary Authority linked this charge with charge No.2 which was regarding complaint by 80 advocates the petitioner and substantiated this charge with the contents of said charge No.2. It would not be incorrect to say that it was only linking with another charge something could be read in support of the present charge. The said charge No.2 is not established as noted above. In absence of instances, even otherwise the charge in question remained too vague to be held as established. It is difficult view the charge as approved misconduct. The Disciplinary Authority committed a clear error in treating the charge as proved. The inquiry appeared to be originated from anonymous complaint against the delinquent as could be seen from the list of documents. An error of judgment, interpretational diversions, a different in perception or difference of opinion, as well as individualistic approach on part of a judicial officer can hardly be equated, in their any amount of degree, with misconduct. These characteristic are not one with the help of which the “misconduct” can be alleged, when they have not intake of extraneous considerations or corrupt practice.
19. Charge No.13 held to be partially proved by the inquiry officer and held proved by the disciplinary authority is discussed at later stage hereinafter.
20. Charge No.14 was held not proved, both by the inquiry officer and by the disciplinary authority. Conclusion on charge Nos.15,16
21. Charge Nos.15 and 16 came to be considered together by the disciplinary authority. Substance of those charges were that the petitioner was not pronouncing judgment/orders within stipulated time. It is pertinent to note that this charge overlaps charge No.1 of Inquiry No.12 of 2001, which was not proved. This aspect cannot be disregarded by the disciplinary authority. A mere reopening of similar charge is not proof of it in absence of any further and cogent material. The findings and conclusions by the Disciplinary Authority is baseless, without any substantial material, hence, cannot be accepted.
Conclusion on Charges held partly proved by Inquiry Officer and held proved by Disciplinary Authority Conclusion on charge No.4
22. Charge No.4 alleged that in certain motor accident claim cases, the petitioner disbursed amounts beyond the general practice of disbursing about 30%. The petitioner had in a given case directed disbursement of 50% amount, which aspect was formed part of the charge. As far as this charge is concerned, it could be said to be defective in very framing of it inasmuch as what was indicated in the text of the charge was the amount awarded and not the amount disbursed. While the award was regarding excessive disbursement, in the text of imputation, what was mentioned, “were the amounts awarded”, and not the amount disbursed. The judgment and awards with reference to each charge was leveled, were not produced in the proceedings. It was the duty of the prosecution to produce those judgment and awards. The manner of framing of charge and non- production of the judgment and awards would be said to have deprived the delinquent of a reasonable opportunity to defend. Again mere disbursement of marginally higher amount in favour of claimants cannot by itself constitute a misconduct. The guideline mentioned that 30% of the awarded amount is to be disbursed cannot be treated as a caste iron formula. It would depend upon number of factors and the peculiar facts of the case that a judge would decide the proportion of disbursement.
22.1 In his written brief as well as in his reply to the tentative decision, the explanation of the petitioner was that the disbursement orders were administrative in nature and when the actual awards were not produced nor were supplied, the finding against him could not be sustained. It was also sought to be shown by the delinquent that the orders of disbursement were passed after application of mind having due regard to the facts emerging from the record of the case and in that context the amount to be disbursed was determined. The explanation of the petitioner in his written brief at Exhibit 40 may be extracted hereunder:
“While disbursing amount of compensation, the time period of three to five years during which a Claim Petition remains pending with the Tribunal is to be taken into account. The claimant, often a widow, has to be given cash payment for loss of income during this period. The cash payment may be larger where claimants are more in number. The Judge of the Tribunal depending of the circumstances of the case moulds the relief regarding payment.”
22.2 The learned Inquiry Authority has not taken this aspect into consideration at all. The Authority has also not taken into account the fact that there were several claimants in each of the petitions. For instance in MACP No.721/99 Rupees 50,000 each was disbursed to the father and mother of the deceased; Rs.1,56,894 was disbursed to the widow of the deceased and two minor children which would work out to Rs.50,000 per claimant. Since there was time gap of two years between the filing of the petition and the award, substantial amount would have been spent by the widow for maintenance of her children and herself probably by incurring debts. These humanitarian considerations cannot be ignored. Similarly in MACP No.785/98 a sum of Rs.1,15,291 was disbursed between six claimants that would work out to less than Rs. 20,000 per claimant. The time gap between filing of the petition and pronouncement of the award was three years. This was the general pattern followed in all the claim petitions adjudicated by me. I mentioned this fact in my Written Brief Ex.40 and there was no demur. Assuming “general trend” of 30% for one claimant, could it not be increased up to 50% when there are more than two claimants? Would passing such directions amount to misconduct per se? Having regard to this aspect the entire edifice of the charges regarding disbursement of” huge amount would collapse.
22.3 The reason in the above explanation indicates application of mind. In absence of any allegation of corrupt motive, orders disbursing higher amount cannot be treated as misconduct. As regards part of charge that in all five matters concerned, advocates Mrs.Hetaben Shah was representing as noted by the disciplinary authority in its tentative decision was factually incorrect and contrary to charge. The charge mentioned three advocates allegedly favoured by the petitioner. The inquiry officer held this charge to be partially proved to the extent of disbursement of high percentage only. There was nothing to suggest that disbursement was an act of favouritism to advocates named. The part proof of charge as held by the inquiry officer itself stand on a week footing when there is no element of oblique or corrupt motive alleged against the petitioner. The disciplinary authority seriously erred in holding that the charge is proved.
Conclusion on Charge No.10
23. So far as charge No.10 is concerned, it was that the petitioner passed interim order in CMA No.23 of 2001 without hearing the advocate of the caveator by ignoring that the caveat application under Section 148-A of the Code of Civil Procedure was lodged. The inquiry officer concluded that the charge was partially proved, but observed that there was nothing on record to suggest that order was passed with oblique motive. When the disciplinary authority has not disturbed the finding as there was any oblique motive, it left with no material on the basis of which it could have been said that the charge is proved. It can hardly be stated with reference to this charge that by ignoring the caveat, the petitioner acted in a manner unbecoming of a judicial officer. It was not the case that the petitioner was in the habit of passing such order or that there were several cases, except two, wherein caveats were ignored consistently.
Conclusion on Charge No.13
24. Charge No.13 was about quashing of order of a Magistrate and remanding the matter without issuing notice to the original complainant. The inquiry officer held that the charge in so far as it alleged that the delinquent officer passed an erroneous order was proved, but the allegation of oblique motive or having been acted in a manner unbecoming of a judicial officer, however, was not proved. The petitioner's explanation in reply to the charge was as under:
“The learned Magistrate had rejected the application of the accused for discharge under the impression that once process is issued it is not open to the accused to pray for discharge. Referring to judgment of Hon’ble the Supreme Court in K.M.Mathew v. State of Kerala,(AIR 1992 SC 2006) I have stated in my order that Magistrate has the power to drop the proceedings and rescind the process. In view of the position of law that prevailed at the relevant time (it has since changed after the judgment in Adalat Prasad v. Rooplal, [2004(7)SCC 338] I remanded the matter to the trial court to decide the application for discharge afresh after hearing the parties. Since this was the only conclusion possible I thought it fit not to put the complainant to expenses by issuing notice. In his order I has specifically stated that “the original complainant Bank shall have an opportunity to put forward its case” before the Magistrate as regards the application for discharge. In this regard, I rely on decisions of the Gujarat High Court in State of Gujarat v. Thakor Somaji, [1995 (1) GLR 548] and Gujarat Pollution Control Board v. Rushabh Industries, [1995 (2) GLR 1082]. The High Court had allowed the matters without issuing notice to the other side.”
Court's Observations and Findings
25. As per the discussion as above in the conclusion part, for none of the charges the petitioner Officer could have been held guilty. The reasons supplied by the Disciplinary Authority in its tentative decision cannot be endorsed. As far as charge Nos.4, 10 and 13, which were held by the Inquiry Officer as partly proved, in respect of those charges also, the decision of the Disciplinary Authority treating them as proved cannot be approved. On a closer scrutiny, as stated above, even as the Inquiry Officer has held the said charges to be partially proved, they in context of extent of their proof and in the degree of seriousness were not such as would justify the imposition of any penalty, muchless that they can be counted for penalty of dismissal, the overriding circumstance being that there was no element of corrupt or extraneous or oblique motive.
25.1 In furtherance of what is discussed above, it is trite to note that across all the charges, element of extraneous consideration or oblique motive or corrupt practice is conspicuously absent. The charges leveled against the petitioner were either in passing judicial orders and for passing the orders against the settled law, or that his approach in discharge of judicial duty was not acceptable. It could have been possible to make out a misconduct from this charge, had they been backboned by any of the above elements, viz. extraneous or oblique motive or corrupt practice. While assessing the justification of findings of the Disciplinary Authority in respect of different charges, the above aspect needs to be prefaced and highlighted. In none of the charges the elements of extraneous consideration/motive or corrupt practice are proved. Primarily and substantially, what is alleged in the different charges is the conduct in passing different orders which do not augur well in context of settled law on the aspect and that the delinquent officer erred in passing such orders; not that his motive in passing the orders was corrupt or that by passing that orders he was practicing corruption.
25.2 In Kamlesh B. Mehta Vs Registrar, High Court of Gujarat [2004(3) GLR 2290] wherein judicial officer was subjected to departmental proceedings in respect of muddamal, a Division Bench of this court observed that a purely judicial order found erroneous could have been judicially rectified and did not warrant interference with by implication the delinquent was guilty of corrupt practice or that there was dereliction of duty on his part in discharging judicial officer that he acted in a manner unbecoming of a judicial officer. It was observed that, “There is not even an iota of evidence on record to show that the delinquent probationer was actuated by any oblique motive. …The fact that a different view could be judicially taken did not make his order reckless or negligently made. On the basis of material on record, it was unreasonable and unjust to find the delinquent guilty merely on surmises, conjectures and unwarranted inferences which have been unfortunately resorted to in the present case.”
25.3 In S.J.Pathak [2010 (1) GLR 153], A Division Bench observed, “Principle laid down by the Apex Court, clearly applies to the facts of this case. Judicial pronouncement in the absence of clear-cut evidence of favouritism, lack of integrity, corrupt practices, extraneous consideration etc. cannot be the foundation of disciplinary proceedings or else it will affect the judicial freedom and independence. Judicial officers have to be saved to uphold the rule of law and the independence of judiciary. If the High Court entertains anonymous complaints which are frivolous or motivated and originated from unscrupulous lawyers and litigants, no judicial officer would be secure and would not be able to discharge their duties without fear or favour. Judicial officers especially dealing with bail matters, cannot dance to the tune or dictates of lawyers, but has to act in accordance with the settled principles of law.
(Para 25)”
25.4 Mere erroneous orders passed on judicial side or which are perceived as erroneous by viewing them from another possible angle, cannot make the conduct of the judicial officer passing such orders a misdemenour. When other view is possible or plausible is held to be no ground to interfere in a supervisory jurisdiction by the Court, then as to how view of a judicial officer or a judge perceivedly can become an act of misconduct. Bonafide mistake in judicial side, whether resulting out of ignorance of law or lack of updated knowledge or arising out of difference in perception or evaluation of a matter are the individual qualities. Even a judge is expected to have high skill and qualities, lake of it cannot be itself become a misconduct on his part without anything else. An error of judgment, interpretational divulgence or individualistic approach can hardly be given colour of misconduct so long as they are not tainted by extraneous factors and corrupt practice.
25.5 A judicial officer discharging duties howsoever sincerely, is prone to commit an error by very nature of the work and the kind of duty he is to perform. The errors come unwanted because of load of work and paucity of time as against the volume of work to be negotiated. In K.P. Tiwari Vs State of Madhya Pradesh [AIR 1994 SC 1031], the Apex Court held the pertinent observation:
“A judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a judge who has not committed an error is yet to be born.
…It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks, more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not therefore, be attributed to improper motive.” (italics added)
25.6 When a judicial officer acts in his judicial capacity bonafide and his conduct was not tainted with any oblique motive or corrupt practice, it is an important and weighty factor in considering whether the officer acted in a manner unbecoming of a judicial officer. Errors on judicial side or passing of mere erroneous orders not properly conceived cannot fall within the purview of phrase “conducting in a manner unbecoming of a judicial officer.” Inadvertence in judicial or quasi-judicial adjudication is not to be always perceived a culpable negligence, much less to treat it as a misconduct.
26. Judicial Officer when passes erroneous orders in his judicial capacity with application of mind and when such orders are unaccompanied by any proof of extraneous consideration or corrupt intent, they do not become acts of misconducts. They cannot be made subject matter of departmental inquiry couching them as acts of misconduct on spacious ground that they were wrongful or against settled legal principles or that the different view was a correct view. If this is permitted, it would counteract on the morale and independence of judicial officials in the subordinate judiciary. If the judicial officers are to be subjected to departmental proceedings for their allegedly, or even admittedly, wrong orders on merits on judicial side, a sense of reclusion or even timidity would develop in them, and the whole system of administration of justice would become antithetic in its functioning to the very objects it cherishes.
26.1 The above discussion would go to show that the Disciplinary Authority in its final conclusion was not right in recording that the delinquent acted with improper motive or with a desire to oblige himself or unduly favoured one of the parties. There was no material or basis to arrive at such a conclusion. The conduct of the delinquent was in the nature of errors committed on judicial side, which could not have been couched as “gross abuse of powers”, particularly in absence of the delinquent has been shown to be acting with corrupt or oblique motive. The conclusions arrived at were nor borne out from the total reading of facts and evidence. The final decision of respondent No.2 does not deserve to be endorsed to.
27. As a result of above discussion, the final decision dated 11.11.2008/24.03.2009 by respondent No.2 disciplinary authority providing for penalty of dismissal of the petitioner from service cannot sustain and is hereby set aside. The notification dated 4.5.2009 by the Dy. Secretary to Government, Legal Department, the respondent NO.1 herein dismissing the petitioner from service on the basis of the recommendation of respondent No.2 is also set aside.
27.1 Since the petitioner reached the age of superannuation on 28.02.2010 during the pendency of the petition, the question of reinstating him in service does not arise.
27.2 It is further held that in view of setting aside of the decision dated 11.11.2008/24.03.2009 as well as notification dated 4.5.2009 as above, the petitioner shall be entitled to continuity of service and all consequential benefits of service and that such entitlement shall be extended for the purpose of calculation of pension and other retiral benefits becoming payable by virtue of setting aside of the order of dismissal herein.
27.3 The arrears of difference of salary and other service benefits payable shall be paid by respondent No.1 within two months from the date of receipt of a copy of this judgment from respondent No.2. For this purpose, respondent No.2 shall complete the necessary formalities of forwarding necessary papers including copy of this judgment, etc., within one month from the date of receipt of a copy of this judgment and order.
28. Accordingly, the petition is allowed. Rule is made absolute. There shall be no order as to costs.
(RAVI R.TRIPATHI, J.) (N.V.ANJARIA, J.) Anup