IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF AUGUST, 2019 PRESENT THE HON’BLE MR.JUSTICE L. NARAYANA SWAMY AND THE HON’BLE MR.JUSTICE R. DEVDAS WRIT APPEAL Nos.14 & 1040-1042/2012 (S-DIS) IN W.P.No.10756/2009 & W.P.Nos.11030-32/2009(S-DIS) BETWEEN:
SRI.M.NARASIMHA PRASAD S/O SHRI.MUNIPOOJAPPA AGED ABOUT 51 YEARS, QUARTERS NO.J2B-603, NATIONAL GAMES HOUSING COMPLEX, (JUDICIAL BLOCK) KORAMANGALA, BANGALORE - 560 034 ... APPELLANT (BY SRI.S P KULKARNI, ADV.) AND:
1. THE REGISTRAR GENERAL HIGH COURT OF KARNATAKA BANGALORE - 560 001 2. THE STATE OF KARNATAKA BY ITS SECRETARY TO GOVERNMENT LAW, JUSTICE AND HUMAN RIGHTS DEPARTMENT, ON BEHALF OF THE GOVERNOR OF KARNATAKA, KARNATAKA GOVERNMENT SECRETARIAT VIDHANA SOUDHA, BANGALORE - 560 001 ... RESPONDENTS (BY SRI.V.SREENIDHI, AGA) THESE WRIT APPEALS ARE FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION NOS.10756/2009 AND 11030-32/2009(S-DIS) DATED 30/11/2011.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 07.06.2019 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, NARAYANA SWAMY J., DELIVERED THE FOLLOWING:-
JUDGMENT The appellant has filed the present appeals challenging the order of learned Single Judge dated 30.11.2011 passed in W P Nos.10756/2009 & 11030-32/2009 (S-DIS) and prayed for allowing the writ petitions as prayed for. The writ petitions were filed by the appellant seeking for the following reliefs:
“To call for records and examine the same and issue a writ of certiorari or other appropriate writ or direction quashing Inquiry Reports in DI-2/2005 at Annexure-N, DI-3/2005 at Annexure-O, DI-4/2005 at Annexure-P, DI-5/2005 at Annexure-Q, and resolution of the High Court of Karnataka to impose the penalty of dismissal from service and the Government order dated 19.03.2009 at Annexure-A passed by His Excellency Governor of Karnataka and grant such other reliefs.
By the order impugned, the learned Single Judge has dismissed the writ petitions.
2. The facts of the case are that appellant was appointed as Civil Judge (Junior Division) in the year 1995 and he was put on probation. The probationary period of the appellant was declared to have been satisfactorily completed by the notification dated 17.04.2001.
3. While appellant was working as a Civil Judge (Junior Division) at Heggadadevanakote from 28.05.2001 to 22.05.2003, two persons namely, Sri Somashekar, an advocate and one Sri Mallarajegowda, A P P, are said to have shown disrespect to the appellant and the Court. Ultimately, the appellant made a report to this Court for proceeding under Contempt of Court proceedings. The conduct of Sri Somashekar, advocate was condemned by the Advocates Association by passing a resolution on 02.07.2002.
4. In pursuance of the complaint on 22.01.2003 made to the first respondent, contempt proceedings was initiated against Sri Somashekar, Advocate in CCC (Criminal) No.77/2002 and the proceedings came to be dropped by the order dated 18.03.2003 after accepting an unconditional apology tendered by Sri Somashekar, advocate, in the open Court.
5. When the appellant was transferred to C M M Court, Bengalure and which he was working as Deputy Registrar, four articles of charge, all dated 23.3.2005 were served on the appellant, in Nos.DI-2/2005 to DI-5/2005. The appellant was placed under suspension.
6. The Enquiry Officer submitted report and based on the report, the respondent issued a second show cause notice, calling for reply/explanation by the appellant stating therein that he is guilty as per the report and decided to punish him with dismissal from service. Learned counsel for the appellant submits that the appellant has made a detailed reply, but without considering the same, impugned order Annexure-Q has been issued, which His Excellency Governor of Karnataka has confirmed.
7. The learned counsel for the appellant submitted at the threshold that none of the charges warrant departmental inquiry against him. The procedural lapses and even a wrong conclusion and judgment cannot be a subject matter of departmental inquiry. In this respect, several citations are referred, to which reference would be made at a later part of this judgment. It is submitted, Departmental Inquiries were initiated at the instance of two persons who showed disrespect to the appellant as well as to the Court, against one of whom, a criminal contempt case was initiated and it was dropped, accepting his unconditional apology. It is submitted, initiation of four departmental enquiries itself demonstrates non-application of mind by the respondent. If at all, the appellant has committed various irregularities, relating to his working as a Judicial Officer, one Departmental Inquiry could have been initiated. Initiation of four departmental inquiries has virtually deprived the appellant to prepare for the enquiry. Evidence on record has not been properly appreciated. The second show cause notice issued is not a purposive one to seek explanation/reply from the appellant, evaluate the same with report of the inquiry officer and then to arrive at a conclusion whether to accept the inquiry report, punish the appellant and if so, what would be the proportionate punishment, since the decision was pre-determined. The order passed by the Disciplinary Authority is not a speaking order.
8. It is further submitted, appellant joined the service in 1995, his probation was declared in the year 2001 and enquiry has been initiated in 2005. In that short period, a Judge has been subjected to enquiry. It is not the case of the respondent that appellant failed to improve even after issuing necessary direction by way of memo etc., relating to judicial work, either relating to procedural or decision making aspect. In none of the charges, integrity, malice or undue favour in discharging duties by the appellant are alleged. Therefore, there was no scope for proceeding against the appellant in a Departmental Enquiry when its subject matter itself is relating to procedural and decision making aspects of the appellant.
9. It is further submission of the appellant that if departmental inquiries are permitted on the topics relating to Judicial work as is done in the present case against a judicial officer, no judicial officer would be able to discharge his duties in a free and fair manner, which oath a judicial officer takes at the time of entering into the office. The duties of a Judge are so critical and if departmental inquries are sought to be initiated every now and then on those aspects, honest and impartial Judges would be targeted by the disgruntled practitioners, which is not in the best interest of judiciary.
10. When a Judicial Officer is appointed, he/she comes under the purview of Article 235 of the Constitution of India for the purpose of supervisory jurisdiction. Before initiation of departmental inquiries, the High Court should have examined each case, more specifically with reference to Article 235 of the Constitution. Initiation of four departmental inquiries itself on more or less the same subject matter, is violation of Article 235 of the Constitution. The impugned action of the respondent is arbitrary and it is violation of Article 14 of the Constitution.
11. The decision of dismissal was placed before the full court. It was duty of the respondent No.1 to put-forth overall case of the appellant before it is resolved to accept the punishment imposed by the appointing authority. The disciplinary authority has also failed to examine the scope of enquiry and there is total non application of mind in approving the order of dismissal passed against the appellant. Thus he prays for allowing the writ appeals.
12. The learned Government Advocate vehemently objected and supported the order passed by the learned Single Judge. It is submitted, the Judicial Officer is expected to pass order following the due procedure established by law and has to maintain integrity and devotion to duty. The appellant has passed order of temporary injunction without there being mandatory compliance of provisions of Section 80 of CPC. He has issued N B W to witnesses without any reason and insisted application to recall the warrant. The appellant has failed to maintain integrity. In forest offences, the properties were released to accused without affording opportunity of hearing to the prosecution, which is violation of Section 86, 87 & 104-A of the Karnataka Forest Act. When these are the misconduct committed by the appellant, minimum punishment to be imposed is not less than dismissal from service. It is not case of the appellant that he has not been provided fullest opportunity. The case was registered in the year 2005 and it was concluded in the year 2007. This itself shows that the appellant was given fullest opportunity. The judicial pronouncements or judicial decisions, though cannot be subject matter of a departmental enquiry, but wherever it is found that they are tainted with corruption, integrity and malice etc., then the Disciplinary Authority is bound to interfere and initiate departmental enquiry. There are justifiable reasons for imposing punishment of dismissal by the Disciplinary Authority, accepted by the Full Court, His Excellency Governor and also by the learned Single Judge. It is impermissible for the writ appeal Court to re- appreciate the matter and take a different view altogether. Hence it is submitted to dismiss the writ appeals. The learned Government Advocate also placed reliance on authorities, to which reference would be made in the course of this judgment.
13. We have heard the learned counsels and perused the writ appeal papers.
14. It is proper to extract charges in all the four departmental inquiries, which are as follows:
D.I.No.2/2005:
“(1) That while you were working as Civil Judge (Jr.Dn.) and JMFC., H.D.Kote from 28.5.2001 to 22.5.2003, entertained suits in O S Nos.112/01 & 171/01. Both the suits were filed on 12.06.2001 against the Chief Secretary, Government of Karnataka and Assistant Executive Engineer, IV Sub-Division, P.W. Department, H.D.Kote. I.A.-I was filed seeking an interim order of Temporary Injunction against the defendants, their agents, servants, workers or anybody acting on behalf of them from evicting the Applicant/Plaintiff from the suit schedule property till disposal of the suit. I.A.II was filed under Sec.80(2) of C.P.C. By allowing both the said applications in O A 171/01, you passed an order directing both the plaintiff and defendants to maintain status quo and in O S No.112/01 passed an exparte temporary injunction against the defendants as prayed for in I.A.No.III. While allowing the said applications and granting interim relief as prayed, you ignored and violated mandatory provision of Sub-Section 2 of Section 80 of Civil Procedure Code. That on 27.6.2001, the Written Statement and Objections were filed by the defendants. In spite of the same, you extended temporary injunction order from time to time till you passed an order on 29.04.2001 vacating the interim relief granted in favour of the Plaintiffs and thereby, you have failed to maintain absolute integrity and devotion to duty and committed an act which is unbecoming of a Judicial Officer amounting to misconduct within the meaning of Rule 1(1)(i)(ii) & (iii) of the Karnataka Civil Services (Conduct) Rules, 1966.
(ii) That while working as Civil Judge (Jr.Dn.) and JMFC., H D Kote, you were not examining the witnesses which were present before you and were adjourning the cases without assigning the reasons. You did not examine theC.W.8 who was present before the Court in C.C.No.261/00 on 27.8.2001, C.Ws.1 to 6 who were present before the Court in C.C.No.17/01 on 19.09.2001, C.W.8 who was present before the Court in C.C.No.183/00 on 13.9.2001, C.Ws. 1 to 9 who were present before the Court in C.C.No.384/00 on 05.09.2001, C.Ws.1 to 5 who were present before the Court in C.C.No.216/01 on 12.09.2001, C.W.2 who was present before the Court in C.C.No.22/95 on 24.10.2001, C.Ws.4 to 7 who were present before the Court in C.C.No.60/01, C.Ws.1, 3,5 & 6 who were present before the Court in C.C.No.17/01 on 12.11.2001 and thereby, you have failed to maintain absolute integrity and devotion to duty and committed an act which is unbecoming of a Judicial Officer amounting to misconduct within the meaning of Rule 3(1)(i)(ii) & (iii) of the Karnataka Civil Services (Conduct) Rules, 1966.
(iii) That while working as Civil Judge (Jr.Dn.) and JMFC., H.D.Kote, youl issued bailable and non-bailable warrants to witnesses in C.C.No.17/01, 183/00, 296/00, 241/00 and C.C No.128/2000. The said warrants were not executed and when, the witnesses voluntarily appeared before you, you insisted for filing of an application for recall of bailable and non-bailable warrants from the said witnesses though the same were not executed. After application for recall of the warrants were filed by the witnesses, you recalled the said warrants and adjourned the cases without any reason which caused untold hardship to the witnesses and thereby, you have failed to maintain absolute integrity and devotion to duty and committed an act which is unbecoming of a Judicial Officer amounting to misconduct within the meaning of Rule 3(1)(i)(ii) & (iii) of the Karnataka Civil Services (Conduct) Rules, 1966.
(iv) That while you were working as Civil Judge (Jr.Dn.) and JMFC., H.D.Kote,entertained a case in C.C.No.296/2000 pending disposal on your file. On 28.06.2001, CW-1 to 6 were absent and you issued N.B.W. against the said witnesses. On 10.09.2001, CW- 1, 2, 4 & 5 were present. You did not examine them and bound over the said witnesses to file warrant recalling application by the said witnesses and adjourned the case to 17.10.2001 without any valid reason, causing untold hardship to the said witnesses. You adopted this practice because of your tussle with the Assistant Public Prosecutor and you should not have adopted this practice even if the Assistant Public Prosecutor was at fault and thereby, you have failed to maintain absolute integrity and devotion to duty and committed an act which is unbecoming of a Judicial Officer amounting to misconduct within the meaning of Rule 3(1)(i)(ii) & (iii) of the Karnataka Civil Services (Conduct) Rules, 1966.
(v) That while working as Civil Judge (Jr.Dn.) and JMFC., H.D.Kote you entertained a criminal case in C.C.No.351/2001 wherein it was alleged that the accused persons committed theft of beete trees from the forest area which is an offence punishable under Sec.104(A) of the Karnataka Forest Act, 1963. AS per the provisions of Section 104(D)of the said Act, notwithstanding anything contained in the Code of Criminal Procedure, 1973, no person accused of a forest offence, punishable under Sections 86 or 87 or 104-A or in respect of ivory, shall if in custody, be released on bail or on his own bond unless the prosecution has been given an opportunity to oppose the application for such release and where the prosecution opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence. Inspite of such mandatory provisions, ignoring the same, you granted bail to the accused persons in C.C.No.351/2001, C.C.No.207/2001 and C C No. 19/2001 without giving an opportunity to the Prosecution to oppose the application for such release and thereby, you have failed to maintain absolute integrity and devotion to duty and committed an act which is unbecoming of a Judicial Officer amounting to misconduct within the meaning of Rule 3(1)(i)(ii) & (iii) of the Karnataka Civil Services (Conduct) Rules, 1966.”
D.I.No.3/2005:
“(1) While you were working as Civil Judge (Jr.Dn.) and JMFC., H.D.Kote from 28.5.2001 to 22.5.2003, you tried O.S.Nos.14/98, 31.01, 23/92 and 31/94 which were pending on the file of the said Court for disposal. That in the said suits, without preparing or dictating the Judgments, you had pronounced only the operative portion of the judgments in the Open Court and judgments were prepared alter and thereby you have failed to maintain absolute integrity and devotion to duty and committed an act, which is unbecoming of a Judicial Officer, which amounts to misconduct within the meaning of Rule 3(1)(i)(ii) & (iii) of the Karnataka Civil Services (Conduct)Rules, 1966.
(2) On 9.10.02, you pronounced the Judgment in O S NO.14/98, the operative portion of the Judgment was found in the order sheet dated 9.10.2002 and the Judgment which was dictated on 11.10.02, was prepared and kept ready in the file, but you did not sign the said Judgment and thereby you have failed to maintain absolute integrity and devotion to duty and committed an act, which is unbecoming of a Judicial Officer, which amounts to misconduct within the meaning of Rule 3(1)(i)(ii) & (iii) of the Karnataka Civil Services (Conduct)Rules, 1966.
(3) In O S No.31/01, the Judgment was prepared and kept ready in the file, but you did not sign the said Judgment and thereby you have failed to maintain absolute integrity and devotion to duty and committed an act, which is unbecoming of a Judicial Officer, which amounts to misconduct within the meaning of Rule 3(1)(i) (ii) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.
(4) IN O S No.23/92, you pronounced the Judgment on 9.10.02, on 5.2.02, you dictated the judgment up to the portion “Reasons”. On 9.10.02, 10.10.02 & 16.10.02, you dictated the part of the Judgment. The Judgment is not fully dictated till today and thereby you have failed to maintain absolute integrity and devotion to duty and committed an act, which is unbecoming of a Judicial Officer, which amounts to misconduct within the meaning of Rule 3(1)(i)(ii) & (iii) of the Karnataka Civil Services (Conduct) Rules, 1966.
(5) IN O S NO.31/94, you pronounced the Judgment on 23.10.02 and the operative portion of the Judgment was typed in the order sheet of that day. You dictated and prepared the formal judgment on 29.10.02. You, by pronouncing the judgment without dictating or preparing the body of the Judgment and thereby you have failed to maintain absolute integrity and devotion to duty and committed an act, which is unbecoming of a Judicial Officer, which amounts to misconduct within the meaning of Rule 3(1)(i)(ii) & (iii) of the Karnataka Civil Services (Conduct) Rules, 1966.
D.I.No.4/2005:
“(1) That while you were working as Civil Judge (Jr.Dn.) & JMFC, H.D.Kote, from 28.05.01 to 22.05.03, you entertained a casein F.O.C. No.32/01. At the request of the counsel for accused, you advanced the said case on 08.02.02 and granted bail to accused No.1 on his execution of a self-bond for a sum of Rs.10,000/- with solvent surety and with the conditions that the accused shall not tamper with prosecution witnesses directly or indirectly, accused shall be present before concerned Investigating Officer whenever called and he shall be present before the concerned RFO on every Saturday between 10 a.m. to 5 p.m. and sign before them until further orders. On the request of the Asst. Public Prosecutor filed an application for cancellation of bail.
Without giving an opportunity to the counsel for the accused, you passed an order for issue of non-bailable warrant to both the accused. On 13.05.02 an application was filed under Section 70(2) of Cr.P.C on behalf of the accused to recall the non-bailable warrant issued against them. On the said application, you without giving an opportunity to the accused passed the following order:
“Accused not complied the conditions in the similar cases. S.S. counsel deliberately making allegations against the I.Os. S.S. is also accused in one Forest offence and also he is obstructing court work in many cases. Hence, at this circumstance, A-1, 2 remanded to J.C. till 27/5.”
By passing such an order, you have failed to maintain absolute integrity and devotion to duty and thereby committed an act which is unbecoming of a Judicial Officer which amounts to misconduct within the meaning of Rule 3(1)(i), (ii) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.
(2) That while you were working as Civil Judge (Jr.Dn.) & JMFC., H.D.Kote, you entertained a case in H.D.Kote Police Station Crime No.57/02. On 05.04.02, the complainant Sriyuths H.V. Gopal Rao and H.C. Mahesha filed applications under Section 457 Cr P C for release of the properties involved in the said case. On 08.04.02, the Asst. Public Prosecutor filed objections to the said application. In spite of the same, you did not pass any order on the said applications and thus you have failed to maintain absolute integrity and devotion to duty and thereby committed an act which is unbecoming of a Judicial Officer which amounts to misconduct within the meaning of Rule 3(1)(i), (ii) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.
(3) That while you were working as Civil Judge (Jr.Dn.) & JMFC., H.D.Kote, you entertained a criminal case in C.C.No.18/01 pending on the file of the said Court. On 09.05.02, PW-1, Smt.Jayamma was examined in chief by the Asst. Public Prosecutor. You did not allow Sri Somashekhara, advocate for the accused to cross- examine the said witness and adjourned the said case with the following observations:
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If the questions asked by the counsel were irrelevant, you should have recorded such questions and passed an order stating that the same are irrelevant, which you did not do so and thereby failed to maintain absolute integrity and devotion to duty and thus committed an act which is unbecoming of a judicial officer, which amounts to misconduct within the meaning of Rule 3(1)(i), (ii) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.
(4) That while you were working as Civil Judge (Jr.Dn.) & JMFC., H.D.Kote, you entertained a case in H D Kote Police Station Crime No.53/02. On 29.06.02 an application for bail was filed by Sri Somashekhara, advocate on behalf of the accused along with an application to take the case on board, affidavit of the surety and property documents. The said application was filed at about 11a.m. before you. You passed an order to take the said case on board. At about 12 noon you retired to the chambers. The advocate was waiting in the open court till 2 p.m. After lunch when the advocate returned, he noticed that you had passed an order adjourning the said case to 01.08.02 without assigning any reasons and you failed to pass an order for bail though the offences were bailable, thus you have failed to maintain absolute integrity and devotion to duty and thereby committed an act which is unbecoming of a Judicial Officer, which amounts to misconduct within the meaning of Rule 3(1)(i), (ii) & (iii) of Karnataka Civil Services (Conduct) Rules, 1966.
D.I.No.5/2005:
“(1) That you were working as Civil Judge (Jr.Dn.) and JMFC, H.D.Kote from 28.05.2001 to 22.05.2003. That in Crime No.26/2000, 27/2000 and 44/2002; Teak Wood Planks – 15 in number, thin Teak Wood planks – 9 in number, Teak Wood Logs – 2 in number, 1 Hero Honda Splendor Motor Bike, were seized and they were produced and they were in custody of the Court. That on 31.8.2002, you had put up the above properties for sale through public auction. The sale had been notified. Number of bidders had participated. You auctioned the properties like chopper, sickles, etc., in public auction with the assistance of Sri Dakshina Murthy, Accounts Sheristedar, Smt.Dhanalakshmi, Property Clerk and Sri Basavaraj, S.D.A. However, you did not auction Teak Wood Planks – 15 in number, thin Teak Wood planks – 9 in number, Teak Wood Logs – 2 in number, 1 Hero Honda Splendor motor bike, through public auction, though, they had been notified. At 5.00 p.m. on the same day, you prepared documents to show as if, the above properties have been sold in public auction and you sold the Hero Honda Splendor Motor bike for a sum of Rs.7,000/- to one Sri Lingaraju, who is related to Smt.Prema Kumari, Typist-Copyist, working in that Court. Similarly, you sold Teak Wood Planks, thin Teak Wood planks and Teak Wood Logs for a sum of Rs.3,000/- and Rs.2,000/- respectively. Thus, the above properties were not sold in public auction, as notified. You had not prepared the estimated value of the above properties before they were sold to the persons aforestated. You had failed to maintain the sale list. The sale lists prepared in respect of tdhe above properties have been manipulated. Thus, by selling the aforestated properties to the persons related to your court officials, by holding the sale in your chambers and even without preparing the sale list, you have failed to maintain absolute integrity and devotion to duty and thereby committed an act which is unbecoming of a Judicial Officer which amounts to misconduct within the meaning of Rule 3(1)(i)(ii) & (iii) of the Karnataka Civil Services (Conduct) Rules, 1966.”
15. Of the above charges, the Inquiry Officer has held the following charges as ‘proved’:
“In DI No.2/2005, charges No.(i) &(v) are held to be proved, namely in short version, (i) the appellant had granted an order of status quo on an interlocutory application for temporary injunction in a civil suit and had further granted an exparte order of temporary injunction in yet another a civil suit against the State, which was represented by the defendants in violation of Section 80(2) of the Code of Civil Procedure.
(v) That the appellant had granted bail to an accused in a case involving offences under the Karnataka Forest Act, 1963.
In DI No.3/2005, all the charges are held to have been proved, namely in short version:
(i) The appellant without preparing the text of the judgment had pronounced the operative portion of the judgment in open court and the judgment was actually prepared later.
(ii) That he had pronounced the judgment in a civil suit on 9.10.2002, whereas the judgment was actually dictated on 11.10.2002 which remained unsigned by the appellant.
(iii) That the appellant prepared the judgment in O S No.31/2001, but did not sign the judgment.
(iv) That the appellant prepared the judgment in a civil suit on 5.2.2002 and it remained incomplete.
(v) That the appellant pronounced the judgment in a civil suit on 23.10.2002 and a portion of the judgment was typed on the order-sheet and a formal judgment was prepared only six days later.
In DI No.4/2005, charge No.(i) is held to have been proved, namely in short version, (i) That the appellant had, in a case involving offences punishable under the Karnataka Forest Act, at the instance of the counsel for the accused, preponed the case and granted bail and at the request of the Additional Public Prosecutor, the case was again preponed and thereafter an order was issued for Non-bailable Warrant to the accused.
In DI No.5/2005, the charge is held to have been proved, namely in short version, (i) That the appellant had brought properties for sale in public auction in criminal cases and while having brought to auction certain articles like choppers, sickles etc., had not placed teak-wood planks and a motor-cycle for such auction. But however, had recorded that the same was sold at auction to one Linga Raju who was related to the Court Typist and this apparently was done in the chambers of the Judge. While it was also alleged that the appellant had not prepared the estimated value of the properties before the same were sold.”
16. The case of the appellant is that the articles of charges were false and they were issued purely at the instance of advocate Sri Somashekar, member of the Bar and Sri Mallarajegowda, A.P.P in the Court. It is alleged that those two officers created problems to him. They disrespected the appellant while working as a Judge and also shown disrespect to the Court. In respect of Sri Somashekar, advocate, Bar Association had passed a resolution on 02.07.2002 condemning his act since he had disrespected the learned Judge and also the Court. The appellant had made complaint to the Registrar General, High Court of Karnataka on 22.1.2003 and this Court registered a CCC (Criminal) No.77/2002 and after issuance of show cause notice, Sri Somashekar, Advocate appeared before the Court and tendered an unconditional apology in the open Court and thereafter proceedings was dropped. Since Sri Somashekar was made to tender an unconditional apology and since the appellant herein made a complaint against A P P, they are responsible for initiation of departmental enquiry. This submission has not been rebutted by the respondent. There is ample scope for accepting the version of the appellant. We are accepting the same because the complaint was lodged by the appellant in this Court in January, 2003. Contents of the complaint made by the appellant against Sri Somashekar are that he had disrespected the Court and also the Judge and he had used abusive language and obstructed the judicial proceedings. The same was subject matter of a criminal contempt and the said proceedings were dropped on his tendering an unconditional apology. When this is the stand of Sri Somashekar at the Bar, it should have been the fundamental duty of the respondent under Article 235 of the Constitution to protect this judicial officer, the appellant. The submission of the appellant that initiation of departmental inquiry was at the instance of the above persons, must have been given serious consideration.
17. The judicial pronouncements and judicial decision and decision making process shall not be the subject matter of a departmental enquiry. It is further submission on behalf of the appellant that if the High Court goes on instituting departmental enquiries on the basis of decisions of a judicial officer and judicial proceedings, then no Judge would be able to function independently, in a free and fair manner and he/she will have to work with fear of higher judiciary. The appellant is an innocent officer and he has not committed any offence much less a misconduct warranting his dismissal. The submission has been examined in the light of the charges framed against the appellant. The charges leveled against the appellant pertain to judicial proceedings that he had issued an order of temporary injunction without following mandatory provisions of Section 80 CPC and issued N B W to witnesses unnecessarily, granted adjournments without any reason, in forest offences, released property contrary to provisions of Section 86 & 87 of the Karnataka Forest Act. These are all judicial matters, for which the aggrieved has to approach the appellate Court. The judicial officer who works directly with the advocates and litigants, will have to work according to the requirements in a particular case. Each species of wrong order cannot be taken for the purpose of a departmental inquiry. Article of charges in all the four departmental inquiries pertain to judicial proceedings and therefore the respondent could not have initiated different departmental inquiries on the same set of facts.
18. An independent judiciary is an important organ of Indian democracy. The judiciary will have to function independently without there being any interference from other organs. If this concept is validly accepted, we can understand that independent judiciary means, independence of a Judge. It also demands that each judge has to function without fear or favour as he takes oath while entering into service. When such being the case, when the Judge is threatened with initiation of departmental inquiry, then we cannot expect independent judiciary. In this regard, the Hon’ble Supreme Court in Jasbir Singh Vs. State of Punjab (2006) 8 SCC 294, Para 10 to 14, has held as follows:
“The independence of subordinate court in the discharge of their judicial function is of paramount importance, just, as the independent of the superior courts in the discharge of their judicial functions is. It is the member of the subordinate judiciary, who directly interacts with the parties in the course of proceedings of the case and, therefore, it is not no less important that their independence should be protected effectively to the satisfaction of the litigants. The independence of judiciary has been considered as part of the basic structure of the constitution and as such independence is ensured not only from the executive but also from all other sources of pressure.”
19. The judicial officers and Judges are bound to pass orders and bound to pass interim or final orders. During the course of passing order, most of the judicial officers may have some obstruction either from the bar or some or the other quarters. With all such odds, the Judge would function. When judiciary is functioning in those circumstances, the High Court should have closely monitored, supervised looking at the officer as guardian as provided under Article 235 of the Constitution of India. All his errors should not be a ground for initiating departmental enquiry, the Appellate Court and High Court have got prerogative to correct the errors. The Hon’ble Supreme Court in 1953 SCR 302 has held that the High Court is not vested with unlimited prerogrative to correct all spices of hardship.
20. In AIR 1992 Kerala 312 (Dr. Marykutty Joseph vs State Of Kerala And Ors.) it is held that “It must be repeated case of grave dereliction of duty and flagrant abuse of fundamental principles of law or justice, where grave injustice can be done unless the High Court interferes.”
21. In (2002) 8 SCC 400 Para-2 (Essen Deinki v. Rajiv Kumar) it is held that power under Article 227 is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of jurisdiction of the court below.
22. In (1999) 7 SCC 739 Yoginath D.Bagde vs. State of Maharashtra & another) the Hon’ble Supreme Court has stated in Para-49 as follows:
“49. Under Article 235 of the Constitution, the High Court has a duty to protect the officers of the subordinate judiciary from unscrupulous litigants and lawyers. In Ishwar Chand Jain v. High Court of Punjab & Haryana (1988) 3 SCC 370, it was, inter alia, observed that the High Court while exercising its power of control over the subordinate judiciary is under a constitutional obligation to guide and protect judicial officers. It was further observed that an honest and strict judicial officer is likely to have adversaries in the moffusil courts; if trifling complaints relating to judicial orders which may have been upheld by the High Court on the judicial side are entertained, no judicial officer would feel protected, and it would be difficult for him to discharge his duties honestly and independently. It is, therefore, imperative for the High Court to protect its honest judicial officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants.”
23. (1988) 3 SCC 370 (Ishwar Chand Jain v. High Court of Punjab & Haryana & another, the Hon’ble Supreme Court has stated in Para-14 as follows:
“14. Under the Constitution the High Court has control over the subordinate judiciary. While exercising that control it is under a constitutional obligation to guide and protect judicial officers. An honest strict judicial officer is likely to have adversaries in the moffusil courts. If complaints are entertained on trifling matters relating to judicial orders which may have been upheld by the High Court on the judicial side no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for rule of law. If judicial officers are under constant threat of complaint and enquiry on trifling matters and if High Court encourages anonymous complaints to hold the field the subordinate judiciary will not be able to administer justice in an independent and honest manner. It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. Having regard to facts and circumstances of the instant case we have no doubt in our mind that the resolution passed by the Bar Association against the appellant was wholly unjustified and the complaints made by Shri Mehlawat and others were motivated which did not deserve any credit. Even the vigilance judge after holding enquiry did not record any finding that the appellant was guilty of any corrupt motive or that he had not acted judicially. All that was said against him was that he had acted improperly in granting adjournments.”
24. On the basis of the above judgments, we have to examine case of the appellant. It is found nowhere in the article of charges in all the four departmental inquiries, that the respondent has alleged against the appellant about integrity, corruption or malice etc., As long as these things have not been alleged against a judicial officer, court should not have interfered in this type of matters initiating Departmental Inquires. This court could interfere in decision making process in case, it is found that the judicial officer is indulged in malpractice, acts giving rise to doubt about the integrity, corrupt practice and discharge of duty with ulterior motive. Since none of the charges and articles reflect either of these things, it has to be presumed, as it is submitted by the appellant, the appellant judicial officer is innocent, has discharged his duties as per the procedure and he has not violated any law. The appellant may have faultered, may be a case where he has issued temporary injunction without compliance of Section 80 CPC etc. as mentioned above. But these are procedural aspects, aggrieved person could have filed application and even if it is rejected, the aggrieved person could assail it before the appellate court.
25. Similarly, while issuance of N B W to the witnesses without any reason and releasing of property under forest offence, at best there may be procedural lapses. The allegations that judgments were pronounced only with operative portion and subsequently judgment was prepared and judgment is not available in the record for which the appellant has stated in his reply and also defence that newly appointed stenographer was not acquainted in dictation process, he might have committed some mistake. When such defence is taken, the respondent should have summoned the stenographer for the purpose of examination. He or she has not been examined either by delinquent or as a prosecution witness.
26. It is relevant to mention since both of us have first hand information about problems that the judicial officers face at the lower level. In the High Court itself we select stenographers after test and interview but in the beginning, they will not be able to follow the legal proceedings, legal language and dictation. If this is the facts situation in the High Court, then we can imagine what would be the position in the lower judiciary. The appellant specifically pleaded that the judgment writer was a fresher and he may not have transcribed the dictation on time and for that judicial officer should not have been punished. It is not the case of the respondent that judicial officer has committed very grave misconduct touching the area of integrity, corruption etc., it is again at the cost of repetition, we hold that respondent has not uttered anything about integrity of the appellant. When such being the position, the appellant could not have been proceeded in a departmental enquiry, more so, could not have been dismissed from service.
27. We have stated, ordinarily, the High Court shall not interfere in decision and decision making process but there is an exception. If it is found, on the prima facie case that they have gathered information that in discharging his duty as a judicial officer, he/she has indulged in corrupt practice or bias, then even in judicial decision and proceedings also, this court can interfere. In this regard, the Hon’ble Supreme Court in AIR 1997 SC 2631 Para – 17 has held as follows:
“It would, therefore, be necessary to see whether the respondent has committed misconduct by demanding illegal gratification. The fallen standard in morality and rectitude in the general public finds its transmission into the judiciary as well. Since the respondent was a probationer, he was more prone to tread the path of corrupt practice of demanding illegal gratification to do judicial work, namely, to grant or refuse to grant an order of injunction in the suit. The tendency to corrupt activity is more serious and deleterious than actual catch of a corrupt judicial officer while demanding and accepting illegal gratification. Therefore, if the evidence adduced during the departmental enquiry proves the proclivity of corrupt conduct on the part of the judicial officer and enquiry into his conduct is fair and germane, the imposition of punishment should be appropriate to the magnitude of the misconduct. The question, therefore, is whether the respondent has committed misconduct?”
28. On the same line, in AIR 2001 SC 2788, in which case allegation is relating to bail application granted by the delinquent officer. It was case of the respondent that 19 bail orders out of 3000 bail applications were subject matter of charge sheet. The Inquiry Officer found that in 7 cases, orders of bail was properly granted. in this regard, the Supreme Court made an observation in Para-7 as follows:
“In the present case, though elaborate enquiry has been conducted by the Enquiry Officer, there is hardly any material worth the name forthcoming except to scrutinise 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 act of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking on view and too for alleged misconduct for that reason alone. The Enquiry Officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in the manner. If in every case where an order of a subordinate Court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently of fearlessly. Indeed the words of caution are given in K.K. Dhawan’s case (1993 AIR SCW 1361:AIR 1993 SC 1478: 1993 Lab IC 1028) (supra) and A.N.Saxena’s case (1992 AIR SCW 1336: AIR 1992 SC 1333: 1992 Cri LJ 1940) (supra) that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the appellant in this case.”
29. The other submission of the appellant is that in a judicial proceeding or quasi judicial function, though it is an erroneous order, disciplinary inquiry is not an answer. Such judgment or orders is to be assailed by preferring an appeal or revision and not to be rectified in a departmental inquiry. There may be defect in the order and defects cannot be found in an officer.
30. The Hon’ble Supreme Court in (1993) 2 SCC 49 (Union of India & another v. R K Desai, has stated in Para-7 as follows:
“7. It seems difficult beyond dispute, and is not in fact disputed before us, that it is not as if an officer belonging to the Central Civil Service is totally immune from disciplinary proceedings wherever he discharges quasi-judicial or judicial functions.; If in the discharge of such functions he takes any action pursuant to a corrupt motive or an improper motive to oblige someone or takes revenge on someone, in such a case it is not as if no disciplinary proceedings can be taken at all. On the contrary, merely because he gives a judicial or quasi- judicial decision which is erroneous or even palpably erroneous no disciplinary proceedings would lie. We may in this connection usefully refer to H.H.B Gill v. R (AIR 1948 PC 128), where it was held as under:
“A public servant can only be said to act or to purport to act in the discharge of his official duty, if his act is such as to lie within the scope of his official duty. Thus a Judge neither acts nor purports to act as a Judge in receiving a bribe, though the Judgment which he delivers may be such an act: nor does a Government medical officer act or purport to act as a public servant in picking the pocket of a patient whom he is examining, though the examination itself may be such an act. The test may well be whether the public servant, if challenged, can reasonably claim that, what he does, he does in virtue of his office.”
31. The Hon’ble Supreme Court in Zunijarrao Bhikaji Nagarkar v. Union of India & others (AIR 1999 SC 2881) has held in Para- 43 as follows:
“43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings.”
32. In Himachal Pradesh State Electricity Board Limited v.
Mahesh Dahiya, reported in (2017) 1 SCC 768, the Hon’ble Supreme Court has held in Para-31 as follows:
“31. ..We are of the view that before making opinion with regard to punishment which is to be imposed on a delinquent, the delinquent has to be given an opportunity to submit the representation/reply on the enquiry report which finds a charge proved against the delinquent. The opinion formed by the disciplinary authority-cum-whole-time members on 25.2.2008 was formed without there being benefit of comments of the writ petitioner on the enquiry report. The writ petitioner in his representation to the enquiry report is entitled to point out any defect in the procedure, a defect of substantial nature in appreciation of evidence, any misleading of evidence both oral or documentary. In his representation any inputs and explanation given by the delinquent are also entitled to be considered by the disciplinary authority before it embarks with further proceedings as per statutory rules. We are, thus, of the view that there was violation of principle of natural justice at the level of disciplinary authority when opinion was formed to punish the writ petitioner with dismissal without forwarding the enquiry report to the delinquent and before obtaining his comments on the enquiry report. We are, thus, of the view that the order of the High Court setting aside the punishment order as well as the appellate order has to be maintained”.
33. It is the case of the appellant, the second show cause notice was issued by the Disciplinary Authority along with the inquiry report. But the grievance of the appellant is that in the second show cause notice, the disciplinary authority also proposed the punishment. For reference, the second show cause notice issued in DI.2/2005 is extracted herein under:
No.DI.2/2005 High Court of Karnataka Bangalore Dated 11.10.2007 SHOW CAUSE NOTICE “ The Hon’ble High Court, after considering the report of the Inquiring Authority in D.I.No.2/2005 against you and taking into consideration the evidence on record, has decided to accept the report submitted by the Inquiring Authority. Having regard to the nature of charges, the Hon’ble High Court has proposed to impose a punishment of dismissal from service.
Hence, as directed this notice is issued to you to show cause as to why the penalty of dismissal from service as per Rule 8(viii) of the Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 should not be imposed for misconduct.
You are requested to submit your reply within 15 days from the date of receipt of this notice, failing which the matter will be considered and decided as if you have nothing to say in the matter. Copy of the Inquiry Report is enclosed herewith.”
The other second show cause notices are also on the same line.
34. The purpose of issuing the second show cause notice is to afford full opportunity to the delinquent. Even if the report is furnished, it is not the stage to formulate an opinion whether the delinquent is to be punished and if so, what is the punishment etc., The decision with regard to punishment it is only after receiving reply after giving serious thought on the reply made by the delinquent. The purpose of providing such opportunity as it is held in (2017) 1 SCC 768 Para-31 as extracted above is to have the say of the delinquent and then to form an opinion as to whether the official is liable to be punished and if so, what is the punishment. Quite contrary to the same, here in the instant case, the first respondent had pre-determined and a farce show cause notice was issued. In the above decision, the court proceeded further in setting aside the entire proceedings including the punishment and the Supreme Court observed in Para-33 as follows:
“33. We having found that the principles of natural justice have been violated after submission of the enquiry report dated 29.12.2007. All the proceedings taken by the disciplinary authority after 29.12.2007 have to be set aside and the disciplinary authority is to be directed to forward the copy of the enquiry report in accordance with Rule 15(2) of the 1965 Rules and further proceedings, if any, are to be taken thereafter.”
35. After having gone through the procedure adopted by the Inquiry officer and also respondent in imposing punishment of dismissal from service, we have come across judgment cited by the appellant reported in AIR 1986 SC 2118 (Kashinath Dikshita v. Union of India & others). In almost similar circumstances, the Hon’ble Supreme Court held in Para-13 as follows:
“13. In view of the pronouncements of this Court it is impossible to take any other view. As discussed earlier the facts and circumstances of this case also impel us to the conclusion that the appellant has been denied reasonable opportunity to defend himself. In the result, we are of the opinion that the impugned order of dismissal rendered by the disciplinary authority is violative of Article 311(2) of the Constitution of India inasmuch as the appellant has been denied reasonable opportunity of defending himself and is on that account null and void. We accordingly allow the appeal. The judgment of the High Court is set aside. The impugned order of dismissal dated 10.11.1967 passed against the appellant is quashed and set aside. WE further declare that the impugned order of dismissal is a nullity and non- existent in the eye of law and the appellant must be treated as havintg continued in service till the date of his superannuation on January 31, 1983. Taking into account the facts and circumstances of this case and the time which has elapsed we are of the opinion that the State Government should not be permitted to hold a fresh inquiry against the appellant on the charges in question. We therefore direct the State Government not to do so.”
36. It is duty of the High Court under Article 235 of the Constitution to have supervisory control over the subordinate courts which means as an appellate authority and also as an authority to supervise, guide and keep the entire judiciary in proper line. We judges are bound to commit mistakes and the mistakes are wrong judgments for which various hierarchy is there up to the Supreme Court. When this is the system, High Court is responsible as guardian to protect the judicial officers. The judicial officers who enter into service, they are very innocent officers, they would get a training in some law colleges and getting training in judicial academy, that itself is not sufficient when they go to the Court to discharge their duty facing lot of advocates. The advocates have their own style of performing their duty. With all this, it is inevitable for the judicial officer and unless it is a case where integrity is questionable, it is presumed that the judicial officer is innocent and is entitled to be protected by the High Court. The Hon’ble Supreme Court in (1988) 3 SCC 370 has held “High Court must protect honest judicial officer. The mistakes committed at initial stage by professional officers, if they correct should normally be overlooked. Action can be taken against them, only when they fail to correct even after warning and guidance. Termination of service is not automatic.” Further the court held that “Every Judicial Officer is likely to commit mistake of some kind or the other in passing orders in the initial stages of his service, which matured judicial officer would not do. Further if the orders are passed without there being any corrupt motive or undue favour, the same should be ignored. In the instant case, appellant has not been issued any memo or warning etc. The appellant joined service in 1995 and allegations pertain to the year 2001-2002, that means six years in service. It is too premature to issue such departmental inquiry. Dismissing him from service itself is very atrocious and it is unconstitutional and an innocent honest officer is kept out of judicial service and the respondent made him to struggle in life and members of the family are forced into ignominy. Once a person is appointed as a judicial officer, he will attain a status along with his family members. He will place himself in a higher strata separated from his position as a member of bar association. After spending such a time as judicial officer, if he is sent out for unjustifiable reasons, then he will be like a fish out of the water, he loses his respect in the society including his family members. Before imposing a capital punishment on the appellant, the respondent should have taken required care and caution. In the instant case, we are not satisfied that the respondent has taken such a care and caution in imposing punishment of dismissal, which in Service Jurisprudence is a capital punishment. At the cost of repetition, we refer the judgment reported in (2007) SCC 247. In Para-12 it has been held that if the High Court were to initiate disciplinary proceedings based on judicial order, there should be strong grounds to suspect officer’s bona fides and order itself should have been activated by malice, bias or illegality. It is not the case of the 1st respondent as against the appellant.
37. It has also come in the earlier observations that there are four disciplinary inquiries initiated relating to the year 2001-
02. It is not forthcoming what is the source of information to the respondent to collect all the matters in four different inquiries. If as it is alleged that Sri Somashekar, Advocate and Sri Mallarajegowda, A.P.P. of which Sri Somashekar was proceeded under criminal contempt proceedings and it was dropped on his tendering an unconditional apology, the allegations instead of putting them in a single departmental inquiry, they are spread over to four departmental inquiries. It is hard to understand how those 15 charges in four departmental inquiries could be initiated at one stretch, which deprived the petitioner to defend effectively. The Inquiry Officer has held some charges as having proved and some not proved as noted above. For all the inquiry reports, while accepting, the law requires that acceptance is to be on the basis of the evidence, exhibits and discussion made in the inquiry reports. But while issuing second show cause notice along with the reports, as it is held by the Hon’ble Supreme Court, should have been in open mind, stating therein why the inquiry reports are not acceptable. The second show cause notices are bereft of any reason, evenly worded and in a stereotype printed manner, they are issued. It is stated therein that considering the evidence on record, the disciplinary authority has decided to accept the reports submitted by the inquiry officer and that the High Court has proposed to impose a punishment of dismissal from service. The very noting and what is expressed in the second show cause notice it is very astonishing and contrary to well established judicial tenets. All the show cause notices were issued in a printed form except changing number, evenly dated irrespective of gravity of the allegation in each departmental inquiry stating High Court has proposed to dismiss him from service. This is nothing but non application of mind. It is non application of mind because in DI No.2 there were five article of charges and two charges were held proved. First charge related to issuance of temporary injunction without complying Section 80 CPC notice and second charge related to issuance of N B W to witnesses without a reason. The charges are not that grave in nature. It is part of judicial proceedings, do not warrant in any way imposing a punishment of dismissal, which is on the face of it disproportionate. Non compliance of procedure may be an error but does it warrant dismissal, ought to have been examined. Similarly in DI.3, there were five charges and all the charges are held to have been proved. The charges related to pronouncement of judgments/orders on one day and dictating the same on a subsequent dates. This irregularity on the part of judicial officer may be for various reasons. Finding that it is proved, is contrary to the evidence and exhibits. In the reply, the appellant has stated, that he had a fresher at hand and both faced difficulties. Without examining the veracity of the said reply, the High Court proposed dismissal from service for the said charges also.
38. In DI No.4/2005, there are four charges of which one charge is proved. There also the High Court proposed dismissal from service. Proved charge is in FOC No.32/2001, without giving opportunity to oppose, the bail was granted and N B W was issued without assigning any reason.
39. In DI No.5/2005 the charge is, properties seized were sold of which one property Hero Honda was not notified but it was sold for some amount. So also Teak wood plank etc. In this regard, the learned Single Judge has observed in Para-15 as we have observed about the Registrars in the High Court that “it is no doubt true that the High Court on the administrative side should have proceeded with extreme caution in passing judicial orders to examine whether there is misconduct on the part of the judicial officer in passing such an order. Even if the same could be pressed into service in favour of the petitioner, in the light of there being other charges which have been held proved touching upon his integrity, the same would not be of avail to reverse these findings as the Inquiry Officer has indicated the basis on which those findings have been arrived at and reasons having been assigned, there is limited scope for application of the above case-law in favour of the petitioner.” We concur with the observation made in Para-15 about lapse on the part of the Registry in dealing with such matter. There is no finding to the effect that the appellant had not put those two items for auction. Unless there is specific finding about involvement of the appellant, the appellant could not have been punished for the said lapse holding that he had questionable integrity. The prosecution has examined PW-1 G V Hogade. His evidence is to the following effect:
“I also further noticed that, the entries in respect of item Nos.44 and 45 in Ex.P-4 were in the handwriting of some other person other than the person who had made other entries from Sl.Nos.1 to 43. On interrogation, it was revealed that entries in respect of items 1 to 43 in Ex.P-4 were in the handwriting of property Clerk Smt. Dhanalakshmi. The A/c. Sheristedar Sri. Dakshinamurthy confessed before me that after my arrival there on that day, he got made entries in respect of item No.44 and 45 in Ex.P-4 through an official.”
40. Smt. Dhanalakshmi the property clerk appeared before PW-1 in chamber and told that Ex.P4 is the only sale last prepared by her on 31.08.2002 and on that day she had made entries in Ex. P4 pertaining to item No.1 to 43. And as per this evidence Smt.Dhanalakshmi informed that entries in Ex.P4 pertaining to item No.43 and 44 & 45 are not in her handwriting and she went outside for nature call and thereafter the PO has no any other sale list in respect of different auction 2002. But contrary to this, it is extracted by the Inquiry Officer that one Dakshinamurthy, Accounts Sheristedar who confessed before PW-1 that “after my arrival on that day, he got entered item Nos.44 & 45 in Ex.P4.” In the cross-examination, it is stated, Smt.Dhanalakshmi was on leave on 11.3.2003 did not handover keys of almirah to any other person. When Dakshinamurthy confessed that he committed an error, the Inquiry Officer should have summoned these two officers. Only PW-1 who is a judicial officer and PW-2 to PW-4 have been examined who were not the persons who handled these auction properties as per Ex.P4. There is no specific finding by the Inquiry Officer referring the evidence of the persons who are examined. Non examination of material witnesses like Smt.Dhanalakshmi & Sri Dakshina Murthy, who are property clerk and Accounts Sheristedar and shifting the entire burden on the appellant, who is a judicial officer whose job is not to enter the sale list renders the finding of the inquiry officer perverse. In respect of this charge, the punishment proposed was dismissal from service, which is nothing but arbitrary on the part of the respondent and it is non application of mind. Hence, we hold the enquiry is vitiated, arbitrary and reports are liable to be set aside.
41. The articles of charges as we have discussed earlier were issued in the year 2005 and the appellant was kept under suspension. The purpose of keeping a person under suspension, it is only to keep him away from tampering the record or influencing the official witnesses. When these cases pertain to 2001 while he was working at H D Kote at the relevant point of time and when articles of charges were served he was Deputy Registrar working at City Civil Court, Bengaluru and it was not required to keep him under suspension. For no reason, he was kept under suspension till the final order of dismissal was passed. This again shows sheer ignorance of Registry of the High Court as to the purpose of suspension and its consequences.
42. The Registrars play an important role in the matter of administration of the High Court. It is their duty to bring all required things to the kind notice of Hon’ble Chief Justice, the administrative head. The Registrars are not trained in administrative matters is a fact. We think it is appropriate to make an observation that while engaging or appointing judicial officer to work as Registrar, the Hon’ble Chief Justice may examine the officer to find out his knowledge in administrative matters. Otherwise, these things would repeat and innocent officers will have to suffer unendingly.
43. As we have discussed earlier, we may emphasis that if charges pertained to the same period, then the respondents should have conducted one departmental inquiry in order to enable the officer to defend it effectively. Instead, different departmental inquiries are initiated and about 15 charges are framed, different prosecution witnesses and number of documents and common inquiry officer to deal with and inquiry officer virtually prevented the appellant from effectively defending the case. The charges related to 2001-02 and proceedings were initiated in 2005, about 6 years in office and up to the date of initiation of Departmental Inquiries, he had put in 10 years. The officer needed some considerable time to understand procedural aspects.
44. Thus the respondent has not complied the requirements of article 235 of the constitution, which is supervisory in nature, under which the High Court acts like a guardian, as held in Ishwar Chandra case (1988) 3 SCC 370. The mistakes of a judicial officer at the initial stage without corrupt motive should normally be overlooked. Action can be taken against them only if they fail to mend even after warning and guidance. No memo has been issued, he was not warned and there is no corrupt motive or question touching integrity in the charges. The appellant was thrown to street by way of suspension and ultimately dismissed from service in 2005. This has happened by sheer negligence and neglect attitude of Registry of this Court. For the mistake committed by the respondent, the appellant has lost his valuable life as a judicial officer, his family was made to suffer and children’s education must have been affected. In similar circumstances, the Hon’ble Supreme Court in AIR 1986 SC 2118 set aside the dismissal order, it is a nullity and non existent in the eye of law and he was directed to continue in service till superannuation. Further it was the opinion of the Supreme Court that State Government should not be permitted to hold fresh enquiry against any of the charges in question.
45. Thus we have no hesitation that allegations made against the appellant could not have been subject matter of departmental inquiry. Hence we pass the following order:
ORDER Writ Appeal is allowed. Impugned order passed by the learned Single Judge in W P Nos.10756/2009 & 11030-32 of 2009 (S.DIS) dated 30.11.2011 is hereby set aside. Punishment order dismissing the appellant from service is hereby quashed. All Inquiry reports are quashed. There shall not be any further enquiry against the appellant. The appellant is to be treated as if he had been in service till the date of superannuation and pay all consequential monetary benefits with interest at 8% p.a. The compliance shall be within a period of three months.
Sd/- JUDGE akd Sd/- JUDGE