Hon'ble Abhinava Upadhya,J.
(Delivered by Hon'ble Ashok Bhushan, J.) This writ petition has been filed by the petitioner, a judicial officer, challenging an order reducing the petitioner in rank consequent to disciplinary proceedings conducted by the High Court.
Counter and rejoinder affidavits have been exchanged between the parties and with the consent of learned counsel for the parties, the writ petition is being finally decided.
Brief facts, which emerge from pleadings of the parties, are; the petitioner, a member of U.P. Judicial Service, was promoted as Additional District and Sessions Judge in January, 1997. The petitioner at the relevant time was posted as Second Additional District and Sessions Judge, Rae Bareli. In Case crime No. 311 of 2002, under Section 302, 395 and 120-B of I.P.C. a bail application was moved before the District Judge on 9th September, 2002. A transfer application was filed by the complainant for transferring the case from the court of Special Judge, which although was rejected but the District Judge suo moto transferred the bail application to the court of the petitioner. The bail application was filed by one Akhilesh Kumar Singh who was accused in an incident dated 3rd July, 2002 in which allegation was on Akhilesh Kumar Singh and others persons that they went in the morning at the residence of Rakesh Pandey, the brother of the complainant, and entering in his lawn, have open fired. One of the assailants was arrested on the spot. Rakesh Pandey, who was shot, was taken to a nursing home where he died. The bail application was heard and rejected on 18th October, 2002 by the petitioner (Second Additional District and Sessions Judge, Rae Bareli). In the second bail application certain new circumstances and facts were mentioned on the basis of which the accused claimed grant of bail. The complainant filed a transfer application before the District Judge on 2nd September, 2002 alleging that an information has been received from one Ghanshyam Mishra, Advocate that the officer having taken an amount of Rs.2,50,000/- as gratification from the accused, is going to allow the bail application. Earlier 1st November, 2002 was fixed by the Charged Officer as a date for disposal of the second bail application on which date an adjournment application was filed by the complainant praying for 15 days time. The Charged Officer adjourned the hearing and fixed 2nd November, 2002 as a date for hearing of the second bail application on which date transfer application was filed before the District Judge. The District Judge rejected the transfer application on 2nd November, 2002 with the observation that the Charged Officer may expeditiously disposed of the bail application. The Charged Officer fixed 7th November, 2002 for hearing of the bail application on which date a request for adjournment was again made by the complaint, which was refused and after hearing learned counsel for the accused and the District Government Counsel (Criminal), the bail application was allowed by order dated 7th November, 2002. A complaint dated 16th November, 2012 was filed against the Charged Officer by Anurag Kumar Pandey, the brother of the deceased, to the High Court. The disciplinary inquiry was initiated against the Charged Officer by charge-sheet dated 6th October, 2004. In the disciplinary inquiry, department led evidence consisting of seven witnesses and certain documentary materials. The Charged Officer also filed certain papers in the inquiry. According to the department the second bail was granted substantially on the same grounds as were raised in the first bail application and there was no circumstances justifying the grant of second bail. On the other hand the Charged Officer stated before the learned Enquiry Judge that the second bail was granted on new grounds which were available after rejection of the first bail application. The inquiry was conducted by an Hon'ble Judge of this Court who submitted inquiry report dated 11th October, 2005 holding that the Charged Officer granted bail on extraneous consideration and therefore failed to maintain absolute integrity and devotion to duty and committed misconduct under Rule 3 of the Government Servant Conduct Rules, 1956. The inquiry report was forwarded to the Charged Officer by the High Court for submitting his reply. The Charged Officer by letter dated 6th October, 2005 submitted his reply reiterating that the second bail application was allowed due to certain new circumstances and facts which were brought before him in the second bail application. The matter was taken by the Administrative Committee of the High Court on 29th November, 2005 on which date the Administrative Committee resolved to accept the inquiry report and referred the matter to the Full Court for consideration on quantum of punishment. The Full Court vide its resolution dated 17th December, 2005 accepted the inquiry report and resolved that officer be punished by reversion to the next lower rank from his present substantive rank. The resolution of the Full Court was forwarded to the State Government. The State Government issued an order on 17th January, 2006 reverting the petitioner from the post of Additional District and Sessions Judge to the post of Civil Judge (Senior Division). The writ petition has been filed praying for a writ of certiorari quashing the order dated 17th January, 2006 and further for a writ of mandamus directing the respondents to permit the petitioner to function and discharge the duties as the member of U.P. Higher Judicial Service.
Sri Shailendra, learned counsel for the petitioner, in support of the writ petition, contends that learned Enquiry Judge having himself found that the charge of illegal gratification not proved, there was no material to prove charge of granting bail on extraneous consideration and the learned Enquiry Judge committed error in holding charge proved. It is submitted that neither there was any material nor any finding as to what was the extraneous consideration for granting second bail. It is submitted that even if the learned Enquiry Judge found that the second bail application ought not to have been allowed, the said finding was not sufficient to prove any misconduct on the part of the petitioner who has decided the second bail application on the materials available and it is further submitted that error of judgment alone is not sufficient for proving the charge of misconduct. Learned counsel for the petitioner further submits that petitioner's work and conduct for the last 27 years was satisfactory and at no point of time any adverse comment or any allegation was found in his working. Learned counsel for the petitioner further submits that there were several new circumstances and materials which were brought in the second bail application on the basis of which second bail application was allowed. It is submitted that the Charged Officer has referred to those new grounds and circumstances which were highlighted in his written argument submitted in the inquiry. The new grounds referred to are; (i) filing of charge-sheet, (ii) site plan filed along with the charge-sheet, (iii) statement of witnesses under Section 161 of Cr.P.C., (iv) post-mortem report, (v) entries of G.D. etc. It is submitted that the bail application was decided after giving full opportunity to the parties and was based on cogent reasons.
Sri Manish Goyal, learned counsel appearing for the respondents, refuting the submissions of learned counsel for the petitioner, contends that charges against the petitioner having been proved in the disciplinary inquiry, which inquiry report has been accepted by the Full Court, this Court in exercise of writ jurisdiction shall neither reappraise the evidence nor interfere with the findings of fact recorded in the inquiry report. It is submitted that there was no new circumstances or grounds for grant of second bail that too within 21 days. He further submits that from the materials brought on the record, it was proved that second bail was granted on extraneous consideration, the Enquiry Judge has rightly recorded such finding. The punishment has been awarded on sufficient grounds which needs no interference by this Court.
Learned counsel for the parties have relied on various judgments of the Apex Court as well as this Court which shall be referred to while considering the submissions in detail.
We have considered the submissions of learned counsel for the parties and have perused the record.
The petitioner was proceeded with in the disciplinary inquiry on following charge:-
"You are hereby charged as under:-
That you, while posted as IInd Addl. District & Sessions Judge Rae-Bareli allowed second bail application of main accused Akhilesh Singh who was absconder with a cash of price of Rs.2,500/- on his head, in a case of broad daylight murder u/s 302, 304, 147 & 148 I.P.C., registered at Crime No.311/2002, P.S. Kotwali, Rae-Bareli having rejected the first bail application on substantially the same grounds, without affording sufficient opportunity of hearing to the complainant or the prosecution, for extraneous considerations and you thereby failed to maintain absolute integrity and complete devotion to duty and thus committed misconduct within the meaning of Rule 3 of the U.P. Government Servant Conduct Rules 1956.
........"
A perusal of the above charge indicates that following are the allegations on which the charge of misconduct within the meaning of Rule 3 of the U.P. Government Servant Conduct Rules, 1956 was based:-
(i)Rejected the first bail application substantially on the same grounds;
(ii)Without affording sufficient opportunity of hearing to the complainant or the prosecution; and
(iii)For extraneous consideration.
The charge against the petitioner was thus regarding the order passed by him allowing the second bail application on 7th November, 2002 copy of which order has been filed as Annexure-6 to the writ petition. The first bail application was rejected by the petitioner on 18th October, 2002 which order has been brought on the record as Annexure-4 to the writ petition. The Charged Officer in his written submission, which was submitted before the learned Enquiry Judge, referred to several grounds, which according to the Charged Officer, were not available at the time of first bail application. The grounds as mentioned in the written submission submitted before the Enquiry Judge are as under:-
"New grounds taken by accused in IInd Bail Application (which were not mentioned in/available at the time of First Bail Application)
1. Charge Sheet filed in case which brought knowledge of new facts. (Para-7 of Main appl.) This ground non-existent earlier.
[This point was considered at the time of disposal of IInd Bail Application]
2. Site Plan (filed with C.S.) was discussed with FIR for doubting place of occurrence. (Ground of Bail No.3, 4). This ground came into existence after filing of Charge Sheet. Non-existent earlier.
[Ground no.3 was considered at the time of disposal of IInd Bail appl.].
3. Neighbours, independent witnesses not named the accused Akhilesh. (Ground of Bail No.9 of II B.A.). This ground came into existence after filing of Charge Sheet. Non-existent earlier.
4. Entries & contents of Panchnama & related documents discussed. (Ground of Bail No.1- o l n% 10 of B.A.) This ground not available earlier. Become available only after supply of copies of documents and statements of witnesses, after filing of Charge-sheet. [Bail order also based on Ground of bail no.1- o l.]
5. Statement of 5 witnesses u/s 161 CrPC discussed for doubting prosecution case. (Ground of Bail No.8- v o l n). This ground non-existent earlier. Become available only after supply of copies of documents and statement of witnesses. [Bail order also based on Ground of bail no.8-v]
6. Post Mortem Report discussed for doubting prosecution case. (Para 11 and 17 of Main Appl.). This ground non-existent earlier. Become available only after supply of copies of Post Mortem report, after filing of Charge Sheet.
7. Entries of G.D. discussed for doubting prosecution case. (Para 17 of Main Appl.). This ground non-existent earlier. Become available only after supply of copies to accused."
Learned Enquiry Judge considered the above grounds taken by the Charged Officer and repelled the same. Learned Enquiry Judge also examined the allegations against the petitioner of granting the second bail application after taking illegal gratification. The charge up to that extent was disbelieved by the Enquiry Judge himself. The concluding portion of the report of the Enquiry Judge gives the basis for holding the charge proved against the petitioner. It is useful to quote the conclusion of learned Enquiry Judge in the last portion of the report which is to the following effect:-
"The first bail application had been rejected on 18.10.2002, while the second bail application was filed after merely 11 days i.e. on 29.10.2002 and was granted on the 9th day i.e. 7.11.2002. There was no change of circumstances in such a short period. As there was no new material to justify the grant of second bail and the second bail application was filed after 11 days of the rejection of the first bail application and was granted about three weeks after rejection of the first bail application it appears that the second bail application was granted on extraneous consideration. Oral evidence has been given to the effect that there was transaction of illegal gratification. Ghanshyam Mishra one of the departmental witnesses deposed that the transaction was done through one Jai Karan. What has been said is that Jai Karan Shukla is said to have stated that he had settled with the Presiding Officer for Rs.2 and half lacs. However, there is no direct evidence on the point. The evidence in this regard apart from being hearsay is insufficient. The allegation that money was paid to the Presiding Officer is therefore not proved but the allegation that the bail was granted on extraneous consideration stands proved in view of the circumstances discussed above. The charge is therefore proved that the charged officer granted bail on extraneous consideration and therefore failed to maintain absolute integrity and devotion to duty and committed misconduct under Rule 3 of the Government Servant Conduct Rules, 1956."
The inquiry report along with the comments of the Officer were considered by the Administrative Committee in its meeting dated 29th November, 2005 by which resolution the report was accepted and the matter was referred to the Full Court for consideration on quantum of punishment. The Full Court vide its resolution dated 17th December, 2005 resolved to accept the enquiry report. Following resolution was taken by the Full Court:-
"Considered the enquiry report dated 11.08.2005 submitted by Hon'ble Mr. Justice Janardan Sahai, Enquiry Judge and comments dated 06.10.2005 of the officer concerned thereon in view of A.C. resolution dated 29.11.2005.
Resolved that the enquiry report be accepted.
It is further resolved that the officer be punished by reversion to the next lower rank from his present substantive rank.
Immediate effect be given."
Before we proceed to consider the rival submissions of learned counsel for the parties, as noted above, it is useful to look into the parameters and principles on which a charge can be proved against a judicial officer while passing an order in exercise of his judicial power.
The argument that there can be no disciplinary inquiry with regard to an order passed by an officer exercising quasi judicial/judicial function has been repelled long back in the case of S. Govind Menon vs. Union of India reported in A.I.R. 1967 SC 1274. In the said case the Charged Officer was working as Commissioner under Madras Hindu Religious and Charitable Endowments Act, 1951 and had passed order which was quasi judicial in character. The disciplinary proceedings were challenged on the ground that the action of the officer was quasi judicial in nature and was not subject to administrative control of the Government. The said argument was repelled and following was laid down by the Apex Court in the said judgment:-
" ..... We are unable to accept the proposition contended for by the appellant as correct. Rule 4(1) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted. Rule 4(1)(b) merely says that the appropriate Government competent to institute disciplinary proceedings against a member of the Service would be the Government under whom such member was serving at the time of the commission of such act or omission. It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant. It is therefore open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the Service. It is not disputed that the appellant was, at the time of' the alleged misconduct, employed as the First Member of the Board of Revenue and he was at the same time performing the duties of Commissioner under the Act in addition to his duties as the First Member of the Board of Revenue. In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government; The -test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for .integrity or devotion to duty as a public servant. We are of the opinion that even if the appellant was not subject to the administrative control of the Government when he was functioning as Commissioner under the Act and was not the servant of the Government subject to its orders at the relevant time, his act or omission as Commissioner could form the subject-matter of disciplinary proceedings provided the act or omission would reflect upon his reputation for integrity or devotion to duty as a member of the Service......"
In the case of Union of India and others vs. A.N. Saxena reported in (1992) SCC 124, the question arose as to whether disciplinary action can be taken in regard to action taken or purported to be done in the course of judicial or quasi-judicial proceeding. Following was laid down in paragraph 8 of the said judgment:-
"8. In our view, an argument that no disciplinary action can be taken in regard to action taken or purported to be done in the course of judicial or quasi-judicial proceedings is not correct. It is true that when an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such proceedings, it is true, is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence. Hence the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. But it is not as if such action cannot be taken at all. Where the actions of such an officer indicate culpability, namely, a desire to oblige himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken."
Again in the case of Union of India and others vs. K.K. Dhawan reported in (1993)2 SCC 56, a three Judge Bench of the Apex Court examined the issue in context of an Income Tax Officer who was exercising quasi judicial function. Referring to the judgment of the Apex Court in S. Govind Menon's case (supra), following tests to determine as to when a disciplinary inquiry can be initiated against an officer exercising quasi judicial power, were laid down. Paragraph 19 of the said judgment is quoted below:-
"19. The above case, therefore, is an authority for the proposition that disciplinary proceedings could be initiated against the government servant even with regard to exercise of quasi-judicial powers provided :
(i) The act or omission is such as to reflect on the reputation of the government servant for his integrity or good faith or devotion to duty, or
(ii)there is prima facie material manifesting recklessness or misconduct in the discharge of the official duty, or
(iii)the officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power."
Paragraphs 26, 28 and 29 of the judgment in Union of India and others vs. K.K. Dhawan's case (supra) which are relevant for the present case, laid down as under:-
"26. In the case on hand, article of charge clearly mentions that the nine assessments covered by the article of charge were completed
(i) in an irregular manner,
(ii) in undue haste, and
(iii) apparently with a view to confer undue favour upon the assessees concerned.
(Emphasis supplied) Therefore, the allegation of conferring undue favour is very much there unlike Civil Appeal No. 560/91. If that be so, certainly disciplinary action is warranted. This Court had occasion to examine the position. In Union of India & Ors. v. A.N. Saxena, [1992] 3 SCC 124 to which one of us (Mohan, J.) was a party, it was held as under:
"It was urged before us by learned counsel for the respondent that as the respondents was performing judicial or quasi-judicial functions in making the assessment orders in question even if his actions were wrong they could be corrected in an appeal or in revision and no disciplinary proceedings could be taken regarding such actions.
In our view, an argument that no disciplinary action can be taken in regard to actions taken or purported to be done in the course of judicial or quasi-judicial proceedings is not correct. It is true that when an officer is performing judicial or quasi-judicial functions disciplinary proceedings regarding any of his actions in the course of such proceedings should be taken only after great caution and a close scrutiny of his actions and only if the circumstances so warrant. The initiation of such proceedings, it is true, is likely to shake the confidence of the public in the officer concerned and also if lightly taken likely to undermine his independence. Hence, the need for extreme care and caution before initiation of disciplinary proceedings against an officer performing judicial or quasi-judicial functions in respect of his actions in the discharge or purported to discharge his functions. But it is not as if such action cannot be taken at all. Where the actions of such an officer indicate culpability, namely a desire to oblige himself or unduly favour one of the parties or an improper motive there is no reason why disciplinary action should not be taken."
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28. Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases
(i) Where the officer had acted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty; (ii)if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii)if he has acted in a manner which is unbecoming of a government servant;
(iv)if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party-,
(vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great."
29. The instances above catalogued are not exhaustive. However, we may add that for a mere technical violation or merely because the order is wrong and the action not falling under the above enumerated instances, disciplinary action is not warranted. Here, we may utter a word of caution. Each case will depend upon the facts and no absolute rule can be postulated."
In context of the judicial officers of the State of U.P. two cases need special reference. In the case of P.C. Joshi vs. State of U.P. and others reported in (2001)6 S.C.C. 491 the disciplinary proceedings was drawn against a judicial officer regarding orders passed by the officer deciding bail applications. Following was laid down in paragraph 7 of the judgment:
"7. 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 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 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 that 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 or fearlessly. Indeed the words of caution are given in K.K. Dhawans case [supra] and A.N. Saxenas case [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."
In the case of Ramesh Chander Singh vs. High Court of Allahabad and another reported in (2007)4 SCC 247 a three Judge Bench of the Apex Court had occasion to consider a case of judicial officer of the State of U.P. In the said case the judicial officer was proceeded with departmentally on allegations made against him in orders passed granting bail. The allegation against the officer was that he was paid a sum of Rs.80,000/- for grant of bail and the bail order was passed by the officer on extraneous consideration with oblique motives on insufficient grounds. It is useful to quote the allegations which were noted in paragraph 4, they are as under:-
"4. In the transfer application filed by the brother of the complainant, there was an allegation that a sum of Rs. 80,000/- was paid and that it was settled through a library clerk with the involvement of two other clerks. In the transfer application, he also alleged that the brother and father of accused Ram Pal were found going in and coming out of the residence of the appellant. Despite all these allegations, no charge was framed against the appellant that he had received illegal gratification for granting bail. The charge sheet contained the only allegation that the bail order was passed by the appellant for extraneous consideration with oblique motives on insufficient grounds and that the appellant was guilty of misconduct and failed to maintain absolute integrity and devotion to duty within the meaning of Rule 3 of U.P. Government Servants Conduct Rules, 1956. The charge sheet as well as the statement of facts are clubbed together and the gist of allegations is contained in paragraphs 6 and 7 of the charge sheet."
The Apex Court in the said case after considering the materials and evidence on record held that mere fact that judgment and orders passed by the judicial officer are wrong is not a ground for initiating disciplinary inquiry. Following was laid down in paragraphs 11, 12 and 17 which are as under:-
"11. We fail to understand as to how the High Court arrived at a decision to initiate disciplinary proceedings solely based on the complaint, the contents of which were not believed to be true by the High Court. If the High Court were to initiate disciplinary proceedings based on a judicial order, there should have been strong grounds to suspect officer's bona fides and the order itself should have been actuated by malice, bias or illegality. The appellant-officer was well within his right to grant bail to the accused in discharge of his judicial functions. Unlike provisions for granting bail in TADA Act or NDPS Act, there was no statutory bar in granting bail to the accused in this case. A Sessions Judge was competent to grant bail and if any disciplinary proceedings are initiated against the officer for passing such an order, it would adversely affect the morale of subordinate judiciary and no officer would be able to exercise this power freely and independently.
12. This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care and caution.
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17. In Zunjarrao Bhikaji Nagarkar v. Union of India, AIR 1999 SC 2881, this Court held that wrong exercise of jurisdiction by a quasi judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. Of course, if the Judicial Officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Art. 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate judicial officers and subjecting them to severe disciplinary proceedings would ultimately harm the judicial system at the grassroot level."
The Apex Court in the case of High Court of Judicature at Bombay vs. Shirish Kumar Rangrao Patil and another reported in A.I.R. 1997 S.C. 2631, had considered the imputation against the judicial officer of demanding illegal gratification. The Apex Court laid down that lymph-nodes (cancerous cells) of corruption constantly keep creeping into the vital veins of judiciary and the need to stem is out by judicial surgery lies on judiciary itself by its self imposed or corrective measures or disciplinary action. It is useful to quote following observations made by the Apex Court in paragraph 16 of the judgment which is as under:-
"16. ..... The Tymph-nodes (cancerous cells ) of corruption constantly keep creeping into the vital veins of judiciary and the need to stem it out by judicial surgery lies on judiciary itself by its self-imposed or corrective measures or disciplinary action under the doctrine of control enshrined in Articles 235,124(6) of the constitution. It would, therefore, be necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self-introspection. What is most necessary is to stem out the proclivity of the corrupt conduct rather than to catch when the corrupt demands made and acceptance of illegal gratification. Corruption in judiciary cannot be committed without some members of the Bar become privy to the corrupt. The vigilant watch by the High court, and many a time by the members of the Bar, is the sustaining stream to catch the corrupt and to deal with the situation appropriately. At the same time the High Court is the protector of the subordinate judiciary. Often some members of the bar, in particular, in Muffasil courts, attempt to take undue advantage of their long standing at the bar and attempt to abuse their standing by bringing or attempting to bring about diverse form of pressures and pin-pricks on junior judicial officers or stubborn and stern and unbendable officers. If they remain unsuccessful, to achieve their nefarious purpose, some members of the Bar indulge in mudslinging without any base, by sending repeated anonymous letters against the judicial officer questioning their performance/ capacity/integrity. The High Court should, therefore, take care of the judicial officers and protect them from such unseeming attempts or pressures so as to maintain their morale and independence or the judicial officer and support the honest and upright officers."
In the case of High Court of Judicature at Bombay vs. Uday Singh reported in A.I.R. 1997 SC 2286, which was again a case of disciplinary inquiry against a judicial officer, following was laid down in paragraph 13 of the judgment which is as under:-
"13. Under these circumstance, the question arises: whether the view taken by the High Court could be supported by the evidence on record or whether it is based on no evidence at all ? From the narration of the above facts, it would be difficult to reach a conclusion that the finding reached by the High Court is based on no evidence at all. The necessary conclusion is that the misconduct alleged against the respondent stands proved. The question then is: what would be the nature of punishment to be imposed in the circumstances? Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the office and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that the imposition of penalty of dismissal from service is well justified. It does not warrant interference."
Having noticed the law laid down by the Apex Court in the aforesaid cases, it is thus clear that the disciplinary inquiry regarding conduct of a judicial officer while passing order in exercise of his judicial function can very well be inquired and gone into and can be made subject matter of disciplinary inquiry. However, the misconduct in passing an order by a judicial officer in exercise of his judicial function can be inquired only when the officer has acted in the manner as would reflect on his reputation or integrity or good faith or devotion to duty or there is material to show recklessness or misconduct in the discharge of his duty or he acted in a manner which is unbecoming of a government servant or acted negligently or omitted the prescribed conditions which are essential for exercise of statutory power or an order has been passed to unduly favour one of the parties or actions of the officer are actuated by corrupt motive. An officer while exercising his judicial functions passes large number of orders. The orders may be assailed both on the ground of error of law and error of facts but the mere fact that orders are erroneous is no ground to draw a disciplinary proceeding. When the orders have stemmed out of any corrupt motive or when intend to favour one of the parties or a consideration which is not germane with the case, it can be said that officer has misconducted himself and such conduct can be gone into and enquired.
The charges against the petitioner, as noticed above, were in three parts i.e. (i) rejecting the first bail application substantially on the same ground, (ii) without affording sufficient opportunity of hearing to the complainant or prosecution and (iii) extraneous consideration. As far as second charge is concerned, no finding has been given by the learned Enquiry Judge that bail application was allowed without affording opportunity to the complainant or prosecution. The allegation that officer has passed the order after taking illegal gratification was specifically examined and rejected by the learned Enquiry Judge. The allegation that substantially on the same ground earlier bail application was rejected, has been found favour with the learned Enquiry Judge. Although the Charged Officer in his reply to the charge-sheet and written submission submitted before the learned Enquiry Judge, has explained in detail the new materials which were available to the officer while deciding the second bail application but for the purposes of this case, we need not enter into the issue as to whether the second bail application was rightly allowed by the Charged Officer or not. Even if it is assumed that there was no sufficient ground to allow second bail application, whether that itself can be held to be misconduct, is to be examined in the present case.
As noted above, the law is very clear that mere fact that a wrong order has been passed in exercise of judicial function itself is not a misconduct unless it is proved that the said order was passed due to any corrupt motive to give benefit to either of the parties, recklessly passed by the officer or not in consonance with the conditions attached for exercise of that power.
The findings of the learned Enquiry Judge, which is basis for proving the charge, are that Charged Officer granted bail on extraneous consideration. As noted above, the allegation of taking illegal gratification was disbelieved by the learned Enquiry Judge himself holding that the evidence in that regard was hearsay and insufficient. What was the extraneous consideration, which was held to be proved, has to be looked into. The word "extraneous" has been defined in Webster Comprehensive Dictionary (Encyclopedic Edition) as follows:-
"extraneous. Not intrinsic or essential to matter under consideration;"
The meaning of the word "extraneous" is also "extrinsic" and the word "extrinsic" has been defined in Black's Law Dictionary (Ninth Edition) as follows:-
"extrinsic, Form outside sources; of or relating to outside matters. - Also termed extraneous."
The word "extraneous" thus means something which is outside of the subject matter and not intrinsic. Thus if a judicial officer bases an order on a consideration which is beyond the scope of the case in hand, he is said to be committed a misconduct, but what is the extraneous consideration has to be spelled in the inquiry. When an inquiry is held against an officer on the charge that order has been passed on extraneous consideration, the extraneous consideration has to be inquired and found out before the judicial officer is punished for passing a judicial order. The allegations against the Charged Officer which was levelled in the complaint and with regard to which certain oral evidence was also led in the inquiry, was that one Ghanshyam Mishra, Advocate while sitting on the Basta of Sri Shanker Lal Gupta, Advocate heard a Mukhtar of Akhilesh Kumar Singh that matter has been settled with the officer and second bail application shall be allowed. All allegations pertaining to taking of money have been examined and repelled by the learned Enquiry Judge. The passing of the order after taking bribe is clearly a misconduct for which an officer can be punished, but what is the extraneous consideration on the basis of which the learned Enquiry Judge found the charge proved, has not been spelled in the inquiry report. The grant of second bail substantially on the ground on which the first bail application was rejected, cannot itself be an extraneous consideration unless such extraneous consideration is spelled. The extraneous consideration is a consideration which is not germane from the case and which is alien to the proceeding or the materials on the record.
The judgment of the Apex Court in Ramesh Chander Singh's case (supra) applies with full force in the present case. In the said case also the learned Enquiry Judge had proved the charge, as noticed by the Apex Court, in following words:-
"However, the learned Judge inquiring the matter eventually came to the conclusion that the bail had been granted by the appellant in utter disregard of judicial norms and on insufficient grounds and based on extraneous consideration with oblique motive and the charges had been proved."
The Apex Court in the very next sentence in paragraph 5 sounded a note of caution, "It is important to note that the Judge who conducted the enquiry has not stated in his report as to what was the oblique motive or the extraneous consideration involved in the matter".
In the present case also, it is clear from the report of the learned Enquiry Judge that neither any oblique motive nor any extraneous consideration has been referred to in the inquiry report which may be said to be motivating factor for grant of bail to the accused. Thus accepting the findings of the learned Enquiry Judge in toto, we are of the view that charge of misconduct has not been proved against the judicial officer since no extraneous consideration has been referred to or found proved in passing the order by the judicial order.
Learned counsel for the respondents has heavily relied on two Division Bench judgments of this Court. The first judgment is in the case of Umesh Chandra Shukla vs. State of U.P. and others reported in 2006(5) AWC 4519. In the said case the officer had granted bail to an accused named Atul Mehrotra on 29th June, 1993 and subsequently on an application moved by the accused he was discharged on 6th August, 1993. The Division Bench in the said case has found that accused has been given undue and unwarranted advantage which is mentioned in paragraph 30 of the judgment. Paragraph 30 of the judgment is quoted below:-
"30. Even in a criminal trial, where standard of proof is much higher, and the case is required to be proved beyond reasonable doubt, such omission in the charges etc. is not fatal unless the accused establishes that his cause got prejudiced. In State of Andhara Pradesh Vs. Thakkidiram Reddy, (1998) 6 SCC 554, the Apex Court while dealing with a similar issue relied upon its earlier judgment in Willie (William) Slaney Vs. State of Madhya Pradesh, AIR 1956 SC 116, wherein it has been observed that in judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given full and fair chance to defend himself, and rejected the contention that for omissions and errors in the charge, the trial stood vitiated."
The Division Bench in the aforesaid case also dealt with the power of judicial review. Following was laid down in paragraphs 34 and 35 of the judgment:-
"34. n judicial review, the Court "has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion, which the authority reaches, is necessarily correct in the view of the Court or the Tribunal. When the conclusion reaches by the authority is based on evidence, the Court or the Tribunal is devoid of power to re-appreciate the evidence and would come to its own conclusion on the proved charges. The only consideration the Court/Tribunal has, in its judicial review, is to consider whether the conclusion is based on the evidence on record that support the finding, or whether the conclusion is based on no evidence."
35. We have examined the matter microscopically and Shri Rajvanshi could not establish that the findings recorded by the Hon'ble Inquiry Judge were perverse and could not have been accepted by the Court. It is not the grievance of the petitioner that the inquiry has not been conducted in accordance with the statutory rules or there has been any violation of principles of natural justice or the punishment imposed is disproportionate to the misconduct. Petitioner had not only proceeded in undue haste but extended undue and unwarranted advantage to the main accused Atul Mehrotra, who was enlarged on bail without considering the gravity of the charge. Even if the petitioner had competence to entertain the bail application, there was no occasion for the petitioner to grant bail to the main accused on the ground of parity, if the co-accused carrier of the main accused had earlier been enlarged on bail, for the reason that in such a fact-situation, there could be no parity. Undoubtedly, the learned Inquiry Judge had proceeded with the presumption that the petitioner was competent to entertain the bail application but also recorded the finding that though there was no direct evidence of passing the bail order on extraneous consideration, even otherwise the charge against the petitioner stood established. In such cases, there cannot be direct evidence for granting the relief on extraneous consideration by the Presiding Officer. However, presumption can be drawn from the attending circumstances."
There cannot be any dispute with the proposition as laid down by the Division Bench in the aforesaid case. The judicial review is not an appeal from a decision but it is review of the manner in which decision is made. We in the present case, have not reappreciated the evidence or have come to a different conclusion, rather our view is that accepting the entire finding of the learned Enquiry Judge, the charge of misconduct was not proved since no extraneous consideration was referred to or found proved.
In another Division Bench, as relied by learned counsel for the respondents, in the case of Ram Chandra Shukla vs. State of U.P. and others reported in 2002(46) ALR 138, the bail application was rejected by the Incharge Sessions Judge on 6th April, 1994. The bail application was filed in the High Court which too was rejected on 28th November, 1994. After rejection of the bail application by the High Court, the charged officer entertained the second bail application and granted bail on 6th February, 1995. The finding was recorded in the said case that the officer has adjourned the hearing on several occasions and in the meantime struck the bargain with the accused. It is useful to quote following observations made in paragraph 5 of the judgment:-
"5. ..... The bail application had already been rejected by the Incharge Sessions Judge on 6.4.1994 and also by the High Court on 28.11.1994 but the petitioner granted bail to the accused on 6.2.1995. By this time, the sessions trial had commenced and two eye-witnesses had also been examined, who had supported the prosecution version of the incident. The Enquiry Judge also took notice of the fact that the bail application was moved on 14.9.1994 and it was adjourned on as many as eight occasions and ultimately the bail was granted on 6.2.1995. The plea of the petitioner that a substantial new ground had arisen and long period had elapsed since rejection of the first bail application was not accepted. It was also held that from the facts and circumstances of the case, an irresistible inference had to be drawn that the petitioner adjourned the hearing of bail application on several occasions and in the meantime struck the bargain with the accused. On these findings, the Enquiry Judge held that the petitioner committed gross misconduct in violation of Rule 3 of U.P. Government Servants Conduct Rules, 1996."
Both the above judgments of the Division Bench were thus based on different findings recorded by the Enquiry Judge and are distinguishable. In the judgment of the Apex Court in the case of High Court of Judicature at Bombay vs. Shirish Kumar Rangrao Patil (supra) the charge that the officer demanded illegal gratification was found proved due to which reason the dismissal of the officer was upheld. Similarly in another judgment of the Apex Court, as relied by the learned counsel for the respondents, in the case of High Court of Judicature at Bombay vs. Uday Singh and others (supra) the charge against the officer that the officer demanded a sum of Rs.10,000/- from the defendant in a suit for eviction was found proved.
From the above discussions, we are of the view that although the learned Enquiry Judge held that bail was granted on account of extraneous consideration but no extraneous consideration having either been referred to or proved, the charge of misconduct against the officer cannot be said to be proved. Further the opinion of the learned Enquiry Judge that substantially on the same ground first bail application was rejected is also not a proof of misconduct by Charged Officer while allowing the bail application unless the granting of bail is referred to or found out on any extraneous consideration which having not been proved in the present case, the charge of misconduct against the Charged Officer cannot be held to be proved.
In view of the foregoing discussions, we are of the view that punishment of reversion of the petitioner cannot be sustained.
In result, the writ petition is allowed. The order dated 17th January, 2006 is set-aside. The petitioner shall be entitled to all consequential benefits.
Parties shall bear their own costs.
Order Date :- 06.11.2012 Rakesh