5 Dec 2009

High Court imposes cost on itself !!!

In a recent decision, taking upon itself the loss caused to a lower-court judge on account of disciplinary proceedings initiated against him and decided in his favour, the High Court of Gujarat imposed cost on itself. The Court, in this decision, set aside an administrative order passed by the Full Court of the High Court on an earlier occasion leading to the dismissal of the judge.

The High Court was dealing with the challenge to the notification of the Government whereunder the judge was dismissed from service. The Notification has followed a Full Court decision of the High Court which had accepted the report of the Disciplinary Committee in 2005.  The Petitioner, then working as Assistant Judge at Godhra was placed under suspension in 1999 on certain charges of misconduct, pending departmental enquiry. The allegations against him were that "he had granted various bail orders to accused persons in serious cases for consideration other than judicial one and thereby indulged  in corrupt practices and was guilty of dereliction of duty in discharging his official functions and had acted in a manner unbecoming of a judicial officer and that his action would amount to acts of grave misconduct, violating the provisions contained in Rule 3 of the Gujarat Civil Services (Conduct) Rules, 1971". It was argued against him "that principles laid down by the Hon'ble Supreme Court in AIR 1978 SC 429 were not applicable to the cases where the accused were involved in serious offences like kidnapping, abduction of minor child and bride-burning or any other offences affecting the entire society at large and in such serious offences, bail applications should not have been entertained by the Courts unless strong case was made out in favour of the accused. Further it was also stated that petitioner though fully aware of the above settled principles, with oblique motive ignored the said principles and after accepting huge amount as illegal gratification, granted bail to the accused in certain matters, whose previous applications for bail were either rejected on merits or withdrawn."

The Enquiry officer had concluded that the delinquent judge had passed various orders releasing the accused on bail, who were charged with serious offences, in utter disregard and in ignorance of settled legal position and was guilty to this regard. However in respect of other charges the Enquiry officer held that even though a strong suspicion could be raised against the delinquent and one would be tempted to hold that the said orders having been passed against settled principles of law, the Department failed to show evidence that he had passed various orders with oblique motive or after receiving illegal gratification. Thus the Enquiry Officer held that the Department had failed to prove charge of grave mis-conduct or to show that delinquent had acted unbecoming of a judicial officer. The Disciplinary Committee (comprising of the judges of the High Court) agreed that the delinquent judge had acted in violation of the settled judicial precedents. However it held that there was sufficient evidence to hold the delinquent judge guilty and therefore recommended that his services be terminated. It was in this scenario that the report of the Disciplinary Committee was forwarded to the Full Bench of the High Court which recommended his removal and ultimately this was acted upon by the Government which issued a notification to this regard.

The High Court, disagreeing with the earlier findings discussed the correct test that should have been applied to determine if the delinquient judge had been guilty of conduct unbecoming of a judicial officer as under;
25. We are of the view that various bail orders passed by the delinquent officer has to be tested in the light of charges Nos. 2 and 3. Enquiry Officer has clearly found that Department had failed to prove that the delinquent officer had passed various bail orders with oblique motive and after receiving illegal gratification. The Enquiry Officer has also clearly found that the Department had failed to prove the charge of grave misconduct and the delinquent officer had acted unbecoming of a judicial officer. These findings have been accepted by the Disciplinary Committee headed by Justice N.G. Nandi with regard to both the enquiry proceedings. The Apex Court in Kashi Nath Roy (supra) held that human element in justicing being an important element, computer-like functioning cannot be expected of the courts; however, hard they may try and keep themselves precedent-trodden in the scope of discretions and in the manner of judging. Whenever any such intolerable error is detected by or pointed out to a superior court, it is functionally required to correct that error and may, here and there, in an appropriate case, and in a manner befitting, maintaining the dignity of the court and independence of judiciary, convey its message in its judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellow but clear, and result orienting, but rarely as a rebuke. The premises that a Judge committed a mistake or an error beyond the limits of tolerance, is no ground to inflict condemnation on the Judge Subordinate, unless there existed something else and for exceptional grounds. Principle laid down by the Apex Court, in our view, clearly applies to the facts of this case. Judicial pronouncement in the absence of clear cut evidence of favouratism, lack of integrity, corrupt practices, extraneous consideration etc. cannot be the foundation of disciplinary proceedings or else it will affect the judicial freedom and independence. Judicial officers have to be saved to uphold the rule of law and the independence of judiciary. If the High Court entertains anonymous complaints which are frivolous or motivated and originated from unscrupulous lawyers and litigants, no judicial officers would be secure and would not be able to discharge their duties without fear or favour. Judicial officers especially dealing with bail matters, cannot dance to the tune or dictates of lawyers but has to act in accordance with the settled principles of law.
26. We have noticed that none of the bail orders with which we are concerned, granted by the delinquent officer, was questioned before the Appellate Court and no complaints had been filed by the complainant or the State against the delinquent officer either before the High Court on administrative side or before any other forum. Further witnesses 3 and 4 examined on the side of the prosecution had stated that they have no grievance against the delinquent officer during his tenure at Junagadh. None of the above witnesses had made any specific allegation against the delinquent officer, but only suspected his integrity. Suspicion, in our view cannot take place of proof and merely on conjectures and surmises and in the absence of any material evidence, we cannot point our finger against the delinquent officer. Court cannot merely infer oblique motive or corrupt practices against a judicial officer in the absence of any evidence worth mentioning. On facts we fully concur with the views expressed by Enquiry Officer in Departmental Enquiry Nos. 3 and 9/99 in respect of all the charges except charge No.1 in Departmental Enquiry No.3. Disciplinary Committee headed by Justice N.G Nandi has also fully endorsed the view of the Enquiry Officer except charge No.1 in Departmental Enquiry No. 3/99. With regard to charge No.1 in the Departmental Enquiry No. 3/99, in our view, Disciplinary Committee headed by Justice N.G Nandi had rightly come to the conclusion that in the absence of any evidence to prove charge Nos. 2 and 3, there was no justification in contending that some bail orders were issued contrary to the settled principle of law or due to corrupt practices or for illegal gratification.
However the High Court cast upon itself the burden of correcting the earlier error in referring the matter to second disciplinary committee in as much as it noted;
28. We are also of the view that Full Court of the High Court has committed a serious error in entrusting the Departmental Enquiry again to the Disciplinary Committee headed by Justice B.J. Shethna, vide chamber decision dated 6.5.2003, when that Committee had earlier recorded a clear finding, though tentative, that all charges levelled against the delinquent officer were established and recommended for his dismissal from service under Rule 6 of the Gujarat Civil Services (Discipline & Appeal) Rules, 1971. Disciplinary Committee headed by Justice B.J. Shethna had already pre-judged the issue and hence, we fail to see how High Court could again entrust the enquiry to the same Disciplinary Committee, especially in the wake of a contrary report submitted by the Disciplinary Committee headed by Justice N.G. Nandi. The procedure followed by the High Court, in our view, is illegal, arbitrary and violative of principles of natural justice and Article 14 of the Constitution of India.
29. We are of the considered view that entrusting the enquiry to the same Committee would give rise to a real apprehension in the mind of the delinquent that he would not get justice because the Committee would be more inclined to uphold their view that the delinquent was guilty and to be dismissed from service. Bias in this case cannot be said to be unreal, it is real and substantial. It is trite law that a person who tries a cause should be able to deal with the matter before him objectively, fairly and impartially. No one can act in a decision making process if his previous conduct gives ground for believing that he cannot act with open mind. The cumulative effect of all the circumstances of this case is sufficient to create in the mind of a reasonable man an impression that there was likelihood of bias in the Disciplinary Committee headed by Justice B.J. Shethna, since the Committee had earlier expressed their views.
34. Chamber Meeting in which all the Judges of the High Court are expected to participate is a serious meeting, where important decisions touching the administration of the entire judiciary is taken. Larger the Committee, lesser the application of mind, which is a hard reality, but members of quorum are free to express their views, but at times too much of views and opinions takes the House from the real issue and leads to unchartered areas just like the present case. If serious thought was bestowed on the issue in the Chamber meeting held on 6.5.2003, then the High Court would not have entrusted the enquiry to the Committee which had already pre-judged the issue, which we have already found was a serious legal infirmity. We are sure that the Chamber would be more watchful and circumspect when such issue comes up for deliberations before it in future and would not be carried away by personal views or predilection.
35. We are therefore, of the considered view that the order passed by the High Court in accepting the report submitted by the Committee headed by Justice B.J. Shethna was illegal and also the consequent decision taken to dismiss the delinquent officer from service and also the Notification issued by the Government dated 13.4.2006 imposing punishment of dismissal on the delinquent officer. We therefore set aside all those orders and direct the respondents to reinstate the delinquent officer forthwith, who will be entitled for all service benefits, but only 50% of the salary and other benefits, since he was not functioning as judicial officer for last 10 years. We also award costs of Rs. 15,000/- towards legal expenses to the petitioner to be paid by the High Court.

No comments: