Madras High Court
D. Amaladoss vs The State Of Tamil Nadu Rep. By The ... on 19 September, 2006
Equivalent citations: 2006(5)CTC141, (2006)4MLJ1360
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao
ORDER Elipe Dharma Rao, J.
1. Challenge is to the order in G.O.(2D) No. 208 Home (Courts I-A) Department, dated 29-09-1999 passed by the first respondent, by which the petitioner was dismissed from service in respect of certain charges alleged against him, which have been held to be proved in the enquiry.
2. Facts, in brief, as culled out from the pleadings on record, are:
The petitioner was a Judicial Officer in the Tamil Nadu State Judicial Service. A complaint was made to the High Court by one R. Muthusamy against the petitioner alleging corruption and misconduct. The complaint was received by the Vigilance Cell of the Madras High Court on 2-12-1991.
The Sessions Judge, Dharmapuri issued an office memorandum, dated 12-5-1992, calling for the remarks of the petitioner in respect of certain allegations made against him in the transfer petition (Crl. M.P. No. 1286 of 1992) seeking transfer of the criminal case in C.C. No. 152 of 1991, which was pending before the petitioner, to some other criminal court. The allegation was that the petitioner demanded bribe for delivering a favourable judgment. The petitioner submitted his explanation on 14-5-1992 denying the allegation of demand of bribe.
Another office memorandum dated 21-7-1992 was issued to the petitioner by the Sessions Judge, Dharmapuri calling for his remarks on the complaint made by an advocate that out of personal animosity and inimical disposition of mind, he has shown discriminatory attitude in the mater of imposition of sentence and awarded higher sentence to one Kaveriammal, who was convicted in STR No. 2698 of 1992. Petitioner submitted his explanation, denying the allegations made against him.
These incidents had happened during 1991-93 when the petitioner was serving as Judicial Magistrate-I, Dharmapuri. In both these matters, an Advocate by name Kabilan had appeared for the accused and the transfer petition was made by him.
While the matter stood at that stage, the petitioner was served with a memorandum in ROC No. 176/96 Con. B2 dated 22-10-1996 with a copy of the report of the Special Officer (Vigilance Cell) and copies of the testimonies of the witnesses said to have been recorded during the preliminary enquiry held on 31-08-1996. The petitioner was directed to submit his explanation, which he did on 19-11-1996. In his explanation, the petitioner stated that since the subject-matter of the report related to the period July, 1991 to June, 1992, he could not recollect the factual details and, therefore, requested for copies of certain documents to enable him to make an effective explanation. Permission was granted to the petitioner to peruse the records in the presence of the Registrar of this Court, which was done by him on 14-12-1996. Ultimately, the petitioner submitted his explanation on 2-1-1997, denying all the allegations. The petitioner, in his explanation, also raised the plea of prejudice in view of the whooping delay of more than four years and also due to non-availability of certain important documents relating to the allegations for his persual.
The explanation offered by the petitioner was found to be not acceptable. By proceedings dated 4-12-1997, five charges were framed against the petitioner. The crux of the charges is alleged demand of bribe and misconduct relating to the criminal cases in C.C. No. 152 of 1991 and STR No. 1698 of 1992, which were pending before the petitioner when he was Judicial Magistrate-I, Dharmapuri during 1991-93. Petitioner submitted his statement of defence on 29-1-1998.
District Judge, Dharmapuri and the Principal Sub-Judge, Krishnagiri were appointed as the Enquiry Officer and the Presenting Officer respectively to conduct the enquiry proceedings initiated against the petitioner. The Enquiry Officer, after conclusion of the enquiry proceedings, submitted his report dated 25-9-1998 to the High Court, a copy of which was forwarded to the petitioner vide High Court proceedings dated 17-5-1999. Of the five charges, Charge Nos. 1,2,4 and 5 were found to be proved against the petitioner and Charge No. 3 was found to be not proved. The petitioner was required to make further representation with reference to the findings of the Enquiry Officer. The petitioner submitted his representation dated 20-7-1999.
During the pendency of the enquiry proceedings, the petitioner had also made a representation to the High Court that since he had made a complaint before the Bar Council of Tamil Nadu against Advocate Kabilan for having filed false complaint before the District Court, Krishnagiri with reference to the allegation in Charge No. 1., the entire enquiry proceedings should be kept in abeyance till the disposal of the complaint by the Bar Council.
On 17-08-1999, the Administrative Committee of the High Court passed the minutes recommending to the Full Court to accept the findings of the Enquiry Officer and to impose the penalty of dismissal from service. The recommendation of the Administrative Committee was accepted by the Full Court in the meeting held on 24-08-1999.
On the basis of the recommendation made by the Full Court, the second respondent, by the impugned order dated 20-09-1999, dismissed the petitioner from service. This was communicated to the petitioner at 4.45 p.m. on 30-9-1999, the day on which he was to be superannuated.
The petitioner submitted an appeal on 19-11-1999, but sensing that no useful purpose would be served by awaiting the outcome of the appeal, he has filed the present writ petition challenging his dismissal from service.
3. Learned senior counsel appearing for the petitioner submitted that there was a whooping delay of over four years from the period of the alleged incidents (1991-92) and the initiation of disciplinary proceedings (1996) and thereafter again there was an inordinate delay of nearly three years in imposing the major penalty of dismissal from service (1999). The inordinate and unexplained delay of more than four years for initiating the disciplinary enquiry and three years in imposing the penalty would vitiate the entire disciplinary proceedings initiated against the petitioner. The delay factor, in the facts and circumstances of the case where the charges are all based on oral evidence, has virtually caused great prejudice to the petitioner. The delay factor has paralysed the petitioner's memory from recollecting the past events with absolute clarity and thus deprived him from making an effective defence. Of course, delay per se may not vitiate the departmental enquiry proceedings, but if the delay is enormous and unexplained and if it is demonstrated that there is likelihood of prejudice being caused to the delinquent, the punishment itself would be vitiated. The delay factor coupled with the denial of permission to peruse certain vital documents and non-availability of certain documents on the records resulted in the complete breach of the principles of natural justice as well as Article 311(2) of the Constitution of India.
4. In support of the above contention, learned Counsel relied on The State of Madhya Pradesh v. Bani Singh ; State of Punjab v. Chaman Lal Goyal ; Union of India and Ors. v. Raj Kishore Parija 1995 Supp (4) SCC 235; T.V. Balakrishnan v. State of Tamil Nadu and Ors. 1995 Supp. [4] SCC 236; State of Andhra Pradesh v. N. Radhakrishnan and B. Loganathan v. The Union of India .
5. Learned senior counsel further argued that on receipt of the enquiry report, the Administrative Committee, before recommending to the Full Court the punishment of dismissal from service, should have considered the whole issue with reference to the evidence adduced at the enquiry and formed a provisional opinion regarding acceptance of the enquiry report and also on the question of proposed punishment. Even the Full Court should have done this exercise before accepting the recommendation of the Committee. This procedure was given a go-by in the present case. The letter dated 10-6-1999 written by the High Court directing the petitioner to appear before the Medical Board and the further letter dated 30-6-1999 calling for the judgments rendered by the petitioner to consider him for promotion to the post of Sub Judge indicate that calling for further representation from the petitioner was done without forming an opinion whether to accept the enquiry report or not. This procedural lapse was in violation of Rule 17(b)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, which would render all the subsequent proceedings void and illegal.
6. Learned senior counsel submitted that the Enquiry Officer wholly relied upon the preliminary statement of P.W.1 and Ex.P-5 for the purpose of corroboration. Under Rule 17(b) of the Rules, preliminary statement of a witness cannot be relied upon. What is relevant is the evidence given during the enquiry proceedings. Further, there are contradictions and inconsistencies in the preliminary statement and the statements of the witness in the enquiry proceedings. The Enquiry Officer failed to consider the statements of P.W.1 in his cross-examination. The Enquiry Officer has not properly appreciated the evidence. The findings of the Enquiry Officer on Charge Nos. 1 and 2 are erroneous, biased and tainted with procedural flaws.
7. Learned senior counsel further submitted that it is not uncommon in the judicial service, particularly in the criminal courts in mofussil stations, that there are no holidays for the Magistrates as they work on all the seven days of the weeks, including Saturday, Sunday and even on public holidays. Passing remand orders, recording dying declaration, etc. are done even on Saturdays, Sundays and even on public holidays. When once an order of remand to judicial custody is passed on a holiday in bailable offences, the right to move bail application accures to the accused instantaneously and there is no rule or circular prohibiting the release of the accused on bail on holidays in bailable offences. Thus, the findings of the Enquiry Officer on charge Nos. 4 and 5 are erroneous. Further, grant of bail, imposition of sentence are all done in exercise of judicial powers and if the accused is aggrieved by the sentence, that could have very well been challenged by way of revision or appeal. No comparison could be made between the sentence imposed in one criminal case with the other to attribute allegations of motive, mala fide, etc. inasmuch as it all depends upon the facts and circumstances of the each case and the antecedents of the accused.
8. Lastly, learned senior counsel submitted that in any event, considering the overall fact situation of the case and the inordinate delay at every stage of the proceedings, the punishment of dismissal from service is excessive. Learned Counsel submitted that the petitioner had put in thirty-six years of service and he has not suffered any punishment till 1999. He was due for promotion as Subordinate Judge in February, 1998, but was not considered in view of the pendency of the present disciplinary proceedings. Further, imposing the major penalty of dismissal from service, that too on the last day of his service career, is unjust.
9. Learned Additional Government Pleader appearing for the respondents, by reiterating the averments made in the counter-affidavit filed by the second respondent, submitted that considering the grave charges of corruption and misconduct against the petitioner, which were proved in the enquiry proceedings, the punishment of dismissal from service cannot be said to be unjust and illegal. Learned Counsel submitted that sufficient opportunities were afforded to the petitioner at all levels of the enquiry and, therefore, it cannot be argued that the entire enquiry procedure was vitiated due to non-observance of the principles of natural justice. The entire matter was considered by the Administrative Committee. After considering the enquiry report and the further representation of the petitioner, the Committee found that the representation submitted by the petitioner was not satisfactory. The Committee, therefore, accepted the enquiry report and found the petitioner guilty of the charges which were proved against him. With regard to imposition of penalty, since the proved charges relate to grave misconduct and corruption, the Committee recommended to the Full Court to accept the findings of the Enquiry Officer and to impose the penalty of dismissal from service. The Full Court in the meeting held on 24-08-1999 accepted the recommendations of the Committee, following which the Government was addressed for issuing orders of the appointing authority imposing the penalty of dismissal from service on the petitioner. Learned Counsel submitted that the appeal petition submitted by the petitioner was forwarded to the Government for issuing necessary orders.
10. On the above stated facts and circumstances of the case, learned senior counsel in support of his first submission on delay in issuing the charge memo, initiation of enquiry proceedings and imposition of punishment relied on the decision of the Supreme Court in State of Madhya Pradesh v. Bani Singh . This matter arises under the Administrative Tribunals Act. The matter before the Supreme Court was against the order of the Central Administrative Tribunal, Jabalpur in O.A. Nos. 201 and 102 of 1987. O.A. No. 201 of 1987 was filed to quash the adverse entries made in the ACR for the year 1976-77 and in the ACR for the year 1979-80; to give retrospective promotion in the Selection Grade of the IPS from 1978 when the juniors of his batch were promoted; and promotion to the post of Super Time Scale to the rank of DIG with effect from 7-11-1981 when his juniors of the batch were promoted with consequential benefits including arrears of pay, etc. We are concerned with the delay in the initiation of the departmental enquiry proceedings and the issuance of the charge-sheet in respect of certain incidents that happened in 1975-76 when the said officer was posted as Commandant, 14th Battalion, SAF, Gwalior. By the order dated 16-12-1987, the Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76. Against that order when the State Government approached the Supreme Court, while dealing with the contention of the Government that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits, it was held we are unable to agree with this contention of the learned Counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 197 there was doubt about the involvement of the officer in the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case there are no grounds to interfere with the Tribunal's orders and accordingly dismissed the appeal.
11. Basing on the above said judgment of the Supreme Court, learned senior counsel for the petitioner submitted that complaint was made on 2-12-1991 and an office memorandum was issued on 12-5-1992 calling for the remarks of the petitioner in respect of certain allegations made against the petitioner in the transfer petition. Petitioner submitted his explanation on 14-5-1992. Another office memorandum was issued on 21-7-1992. The petitioner submitted his explanation. The complaint was made against certain incidents happened during the period 1991-93 when the petitioner was serving as Judicial Magistrate No. I, Dharmapuri. The complaint was made by an Advocate Kabilan. Thereafter, the petitioner was served with a memorandum dated 22-10-1996 with a copy of the report of the Special Officer (Vigilance Cell) and copies of the testimonies of the witnesses said to have been recorded during the preliminary enquiry held on 31-08-1996 and the petitioner was directed to submit his explanation. Accordingly, submitted an explanation on 2-1-1997 denying the allegations. Thereafter on consideration of the explanation, five charges were framed against the petitioner on 4-12-1997. Petitioner submitted his statement of defence on 29-1-1998. The enquiry proceedings were concluded and the report was submitted on 25-9-1998. Against the second show casue notice dated 17-5-1999, the petitioner submitted his representation on 27-5-1999. After consideration and as per the recommendations of the Administrative Committee, the Full Court accepted the recommendations of the Administrative Committee in the meeting held on 24-8-1999. Thereafter, the impugned order dated 20-9-1999 was served on the petitioner on 30-9-1999 dismissing him from service. Therefore, there was a delay of nearly six years in initiating the enquiry proceedings, completion of the enquiry proceedings and issuance of the impugned order for the incidence which took place during 1991-93. Therefore, applying the above said principle laid down by the Supreme Court to the facts and circumstances of the case, learned senior counsel submitted that the order of dismissing the petitioner from service on the ground of delay and laches and in the absence of satisfactory explanation for the delay, the impugned order is liable to be set aside.
12. The second contention raised by the learned senior counsel was with regard to the appreciation of evidence of the complainant as PW-1 and his senior counsel as PW-2. The complaint was marked as Ex.P-5. As per the complaint of the Advocate Kabilan, P.W.1, which was marked as Ex.P-5, his statement was recorded by the Special Officer on 31-8-1996 and during the enquiry he deposed the allegations made in the transfer petition dated 11-5-1992, which was marked as Ex.P-2. Learned Counsel pointed out the following inconsistencies and contradictions in the evidence of PW-1 and PW-2 and also in Ex.P-2 and Ex.P-5. The inconsistencies and contradictions with reference to Charge No. 1, which were pointed out by the learned senior counsel, are as follows:
1. While in Ex.P-5, Statement of Kabilan PW-1 before the Special Officer, dated 31-8-1996 it is stated "today your case is posted for judgment: regarding that come and meet me at my house. To adjourn the case show one accused absent", in Ex.P-2 Transfer Petition dated 11-5-1992, it is stated "on 7-5-92 Magistrate called me and told that 'judgment is not ready' and therefore he asked me to file a petition Under Section 317 Cr.P.C.". However, in his deposition before the Enquiry Officer, PW-1 stated "The Magistrate said that the case stood for Judgment today: Show some one absent and come to the residence". The remarks made by the Enquiry Officer is "It is not necessary to state each and every detail in the Transfer Petition".
2. In his deposition, P.W.1 stated "till 4'O clock the case was not called. On that day after the close of afternoon sitting the Magistrate did not sit on the dais. (So the C.M.P. No. 2372/92 was the last petition for that day). The deposition of Swamy Kannu (Court Clerk PW-4). Swamy Kannu states that C.M.P. No. 2372/92 was the 18th entry in the Reg. No. 12 for 7-5-1992 is 3159 ending with No. 3225. The remarks of the Enquiry Officer is "He will give the Crl. M.P. Number and enter in the diary subsequent to the court work. So we cannot expect that C.M.P. No. 2372/92 was not received as the last petition."
3. Before the Special Officer, PW-1 stated that "PW-1 met the Magistrate at 4.00 PM in the Chamber. Immediately came out of the Chamber thinking that he expects amount. As told by Magistrate A-6 was shown absent on 7-5-1992. PW-1 in his deposition stated "PW-1 met the Magistrate at 4.00 p.m. in the Chamber and then filed CMP No. 2372/92 immediately. (without consulting the senior)". PW-2 stated in his deposition "When I was in the club in the evening Kabilan came and told me that the Magistrate asked Kabilan to meet him in his chamber and residence. I told him to go and meet accordingly. He went away saying that he will show some accused absent and get an adjournment." The remarks made by the Special Officer is "According to PW-2 C.M.P. No. 2372/92 was filed by P.W.1 after consulting with P.W.2 which is contradictory to the version of P.W.1 and Ex.P-5".
4. In Ex.P-5, PW-1 stated "After the case was adjourned on 7-5-1992 at 6.00 PM I went to the house of Magistrate and pleaded for lesser amount and said that I will bring the money on 11-5-1992 and returned from there. That day (7-5-1992) evening at 6.30 PM I met my senior in Ramalinga Chetty Street and narrated all that happened. My senior said "Alright, let's see. Come and see me tomorrow morning". I went home". PW-1 in his deposition stated "After the case was adjourned on 7-5-92 P.W.1 meets P.W.2 in the club at 6.30 PM and P.W.2 advised him to take Rs. 300/- or Rs. 400/- with him. I took Rs. 300/- with me. I met the Magistrate on 7-5-92 at his residence at 6.30 to 7.00 p.m. and I went away saying I will come on the 8th". In this cross-examination, he stated "After meeting the Magistrate I did not meet my senior. After meeting the Magistrate in the evening on 7th I met him on the 11th. In between this period I did not go to meet the Magistrate". The deposition of PW-2 is "Only at 6'O Clock in the evening Kabilan told me that the case was adjourned on the words of the Magistrate". In Ex.P-2 transfer petition it is stated "On 10-5-1992 Sunday I met the Magistrate at his residence as per the words of the Magistrate and at that time he demanded Rs. 10,000/-. I came away saying that I will meet him again." (The embellishment in the deposition of PW-1 was not considered by the Enquiry Officer. With reference to the day, date and time of demand, the Enquiry Officer says that the same can be ignored and brushed aside without giving specific reasons therefor. Contradictions in the matter of PW-1 meeting PW-2 as stated in Ex.P-5 and in the deposition of PW-1 and PW-2. Enquiry Officer accepts the existence of contradictions. But states it may be due to lapse of time and lack of memory of P.W.1).
5. In Ex.P-5, PW-1 stated "On 8-5-92 morning at about 8.30 AM I met my senior Thiru Krishnan at his residence. He told that the case may be transferred to some other Court. PW-1 in his deposition stated "Any only on the next day morning, I went and saw my senior on the 8th morning at 10'O Clock and told him about the demand. Senior said 'Stay petition may be filed in the Sessions Court". PW-2 stated in his deposition "He (PW-1) came and met in the next day morning....Only on the 8th Kabilan came and told me that the Magistrate asks money." The Enquiry Officer remarked "not to incur the wrath of the Magistrate filing transfer petition is reasonable. But does not consider the bona fides in the filing of absent petition on 11-5-1992.
The inconsistencies and contradictions with reference to Charge No. 2 are as follows:
1. In ExP-5 PW-1 stated "Kaveryammal case was adjourned from 3-6-92 to 4-6-92 even though admission petition was filed on 3-6-92". In the chief examination PW-1 does not speak about the adjournment of Kaveryammal Case (Ex.P-4) from 3-6-92 to 4-6-92. In the cross-examination PW-1 states that the adjournment from 3-6 to 4-6-92 was due to return of the Magistrate in the evening at 8.00 PM on 3-6-92 after camp court work at Palacode. In his deposition, PW-2 does not spell out any detail about Ex.P-4 except that he filed appeal and converted the sentence of imprisonment into fine. PW-4 states that Kaveriammal was bound over by the police to appear before the court on 4-6-92 only. That bond has been executed on 30-5-92. In this case also it is noted in the Diary entry that the accused present on 3-6-92. This entry is Ex.D-4. I have written that entry mistakenly due to pressure of work. The remarks made by the Enquiry Officer is to the effect that petition copy in CMP No. 3045/92 not given to the petitioner despite request. Enquiry Officer does not believe the evidence of the court clerk and says that it was denied conveniently by PW-4 to avoid embarrassment. Adjournment of the case from 3-6 to 4-6-92 is not material one.
2. Ex.P-5 does not speak about Rs. 25/- at all. Ex.P-5 does not speak about advocate P.S. Mohan. In his deposition, PW-1 stated "If admission petition is filed Rs. 25/- must be given. I did not give that amount of Rs. 25/-. On 4-6-1992 sentence of imprisonment for ten days imposed on Kaveriammal in Ex.P-4 case. On the intervention of advocate P.S. Mohan cash security bail petition C.M.P. 3046/92 was filed. The admission petition of Kaveriammal was numbered as C.M.P. No. 3045/92 on 4-6-92 and the court seal for receiving the petition on 4-6-92 is found on the petition. The remarks made by the Enquiry Officer is "CMP No. 3046/92 petition copy not furnished to the petitioner despite request. Ex.D-2 is contrary to CMP No. 3046/92. Two new facts introduced falsely in the deposition of PW-1. Enquiry Officer gives a go by for all the infirmities on the ground that PW-1 was a junior lawyer of 7 years standing and hence inexperienced and so these are not material.
Pointing out the above said inconsistencies and contradictions in the statements of PW-1, PW-2 and PW-4 and the relevant exhibits, learned senior counsel submitted that when the complainant PW-1 is not able to give evidence in support of his statement contained in Ex.P-5, the enquiry officer should not have given the finding that the charges, except Charge No. 3, are proved. Further submitted that the Enquiry Officer has liberally made his comments that the junior advocate is inexperienced. Therefore, the approach of the Enquiry Officer was not on the correct lines of law.
13. As per the above inconsistencies and contradictions in the evidence of PW-1 and PW-2, the cardinal principle in the corruption case is that there must be a demand and acceptance of bribe by the delinquent officer and the same has to be proved beyond reasonable doubt. In this case, if the evidence of PW-1 and PW-2 are taken into account they do not prove that there was a demand and acceptance of bribe by the petitioner. Therefore, the Enquiry Officer should not have held that the charges, except Charge No. 3, are proved against the petitioner. The enquiry was in utter violation of Rule 17(b)(ii) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules. Further, seriously contended that the above disciplinary proceedings are vitiated when the petitioner was asked to appear before the Medical Board for considering him for promotion to the post of Subordinate Judge.
14. With regard to Charge No. 4 relating to grant of bail is concerned, learned senior counsel submitted that the Magistrate in the mofussil stations are working on all the days, including Saturday, Sunday and public holidays. Passing remand orders, recording of dying declaration, etc. are done even on holidays. Therefore, after considering his explanation, the petitioner should not have been punished with the extreme penalty. More over, grant of bail is a judicial function and the petitioner has discharged his judicial function in a bona fide manner.
15. In support of his submission, learned senior counsel relied on the decision in D.H. Satyam v. The King 1948 MWN Cr. 136. This Court while considering the revision petition against an order of acquittal pronounced on a Sunday observed as follows:
I do not see any justification for admitting the revision simply on the ground that the order of acquittal was pronounced on Sunday. Though Rule (I) of the Criminal Rules of Practice states that no judicial work should be transacted on Sunday it does not mean that the Court has no jurisdiction to acquit an accused on Sunday and release him from custody. The rule provides for cases of absolute urgency. Even if the pronouncing of the order of acquittal may not be one of absolute urgency I do not feel that this by itself will justify my interference in revision.
16. Learned senior counsel also relied on the decision of the Supreme Court in Moti Ram and Ors. v. State of Madhya Pradesh . In the said case, the petitioner, a poor mason, pending his appeal in the Supreme Court obtained an order for bail in his favour to the satisfaction of the Chief Judicial Magistrate. The direction of the Supreme Court did not spell out the details of the bail, and so, the Magistrate ordered that a surety in a sum of Rs. 10,000/- be produced. The petitioner could not afford to procure that huge sum or manage a surety of sufficient prosperity. Further, the Magistrate demanded sureties from his own district. He refused to accept the suretyship of the petitioner's brother because he and his assets were in another district. The petitioner moved the Supreme Court again to modify the original order to the extent that the petitioner be released on furnishing surety to the tune of Rs. 2,000/- or on executing a personal bond or pass any other order or direction" deem fit and proper. In this context, the Supreme Court held:
There is already a direction for grant of bail by this Court in favour of the petitioner and so the merits of that matter do not have to be examined now. It is a sombre reflection that many little Indians are forced into long cellular servitude for little offences because trials never conclude and bailors are beyond their meagre means. The new awareness about human rights imparts to what might appear to be a small concern relating to small men a deeper meaning. That is why we have decided to examine the question from wider perspective bearing in mind prisoner's right in an international setting and informing ourselves of the historical origins and contemporary trends in this branch of law. Social justice is the signature tune of our Constitution and the little man in peril of losing his liberty is the consumer of Social Justice.
There is no definition of bail in the Code although offences are classified as bailable and non-bailable. The actual Sections which deal with bail, as we will presently show, are of blurred semantics. We have to interdict judicial arbitrariness deprivatory of liberty and ensure fair procedure which has a creative connotation after Maneka Gandhi
17. Learned senior counsel for the petitioner also relied on the decision of this Court in A.M. Sankaran v. The Registrar High Court, Madras 1999 [2] LW 174 wherein this Court set aside the punishment of compulsory retirement imposed on a Judicial Magistrate on the ground that the charge does not disclose that the respondent had any case of recklessness or abuse of power or other misconduct by the petitioner. The Division Bench on the basis of the declaration of law by the Supreme Court and taking into consideration the charge and the evidence adduced, did not find any justification in initiating disciplinary proceedings against the petitioner. The impugned order was, therefore, quashed.
18. Learned senior counsel also relied on the decision of the Supreme Court in P.C. Joshi v. State of U.P. and Ors. wherein in paragraphs 8, 9 and 10 it was observed as follows:
There are other two charges in respect of which the appellant was found to be guilty. One relates to grant of order of stay of disconnection of telephone for non-payment of Rs. 410/- to the Telephone Department in a consumer dispute filed by a senior government doctor. All that he did in his capacity as In-charge District Judge on the assumption that the District Judge being the ex officio Chairman of the District Consumer Forum he could grant such an order and that too when one of the members of the Forum has placed the papers before him seeking for orders. At best it is a case of bona fide and erroneous exercise of judicial powers and that matter cannot be treated as misconduct at all. How the enquiry officer could arrive at a finding that it is falling in one of the categories mentioned above, surpasses our comprehension.
The last charge is to the effect that the appellant had appointed a mali (gardener) on a temporary basis for a period of 3-12 months at a time when he was In-charge District Judge. The action of the appellant was too trivial to call for any action because the appointment made by him was not pursuant to any improper motives such as illegal gratification or otherwise. How the same amounts to misconduct is not clear to us at all except to state that he was only In-charge District Judge.
Thus we find that the findings recorded by the enquiry officer are totally vitiated for want of any legally acceptable or relevant evidence to support the charges of misconduct. In the absence of any evidence, the enquiry officer could not have reached the conclusion in the manner he did, and these findings affirmed by the disciplinary authority also stand vitiated.
19. Now coming to the punishment imposed by the respondents, on appreciation of the enquiry report and the representation made by the petitioner, the punishment is disproportionate to the charges levelled against the petitioner.
20. From the above facts and circumstances of the case and on the scrutiny of the overall appreciation of the evidence of P.W.1 and P.W.2, who are junior and senior advocates, and the inconsistencies and the contradictions as recorded above with regard to the place and time of demand of the bribe by the petitioner and receipt of the amount and the other inconsistencies and contradictions in Ex.P-5 during the course of recording the evidence, the Enquiry Officer who thought he was appointed only to give an enquiry report that the charges are proved by which punishment can be imposed by the High Court the enquiry officer against the inconsistency and contradictory statement made by P.W.1 and P.W.2 excluded the inconsistencies and the contradictions on the ground that by virtue of time gap and that inexperience cannot be appreciated when he was dealing with a judicial officer who was not having any blemish record throughout his career except the complaint made by P.W.1 which can be viewed that when he has failed to obtain favourable orders from the petitioner and others have obtained. Therefore, chosen to file this complaint. More so, when the petitioner was due for promotion and the punishment was imposed at the time of his retirement.
21. Though we cannot re-appreciate the evidence recorded during the course of enquiry conducted by the Enquiry Officer, but we are satisfied on the overwhelming material available on record and after going through the entire deposition of P.W.1 and P.W.2 and the explanation offered by the petitioner that the enquiry officer should not have held that the Charge No. 1 is proved against the petitioner. As per the judgment relied on by the learned senior counsel for the petitioner in Bani Singh case, cited supra, wherein the Supreme Court has interfered with the punishment where there was a delay of twelve years from the date of issuance of the charge-sheet and the imposition of penalty. In the present case also, it took nearly six years to complete the enquiry and impose the punishment. Therefore, we are satisfied that the findings with regard to Charge Nos. 1 and 2 are to be set aside.
22. Further, it is pertinent to note that both P.W.1 and P.W.2 were involved in criminal cases. While P.W.2 was involved in a gambling case, P.W.1 was involved in a criminal case arising out of a partition case. Therefore, we have to see the conduct of the parties before the initiation of the departmental enquiry and thereafter the imposition of punishment on a judicial officer. The Supreme Court in Ishwar Chand case, cited supra, held as under:
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 mofussil 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 complaint made by Sh. Mehalawat 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.
Therefore, by virtue of the conduct of the parties we go to the extent of holding that the High Court should not have initiated the disciplinary proceedings against the petitioner on the complaint made by P.W.1 and P.W.2. Accordingly, the charge memo issued against the petitioner is set aside on the ground of delay as well as on the conduct of the parties.
23. Now coming to Charge Nos. 4 and 5, after hearing the learned senior counsel for the petitioner and the learned Counsel for the respondent and the judgment in D.H. Satyam case, cited supra, on which he relied on, we are of the view even these charges have no legal basis. In D.H. Satyam case, cited surpa, it was observed as follows:
An order of acquittal pronounced on a Sunday even though in contravention of Rule 1 of the Criminal Rules of Practice is not without jurisdiction and the High Court will not interfere in revision on that ground.
24. In Moti Ram case, cited supra, Justice V.R. Krishna Iyer, speaking for the Bench observed as follows:
Even so, poor men - Indians are, in monetary terms, indigents - young persons, infirm individuals and women are weak categories and courts should be liberal in releasing them on their own recognisances - put whatever reasonable conditions you may.
Though the matter related to grant of bail and insistence of sureties, what was there in the mind of the Apex Court was freedom of a poor man.
25. In A.M. Sankaran case, cited supra, a Division Bench of this Court, while dealing with the disciplinary proceedings initiated against a judicial officer on the alleged misuse/abuse of powers under Section 451 of Crl.P.C., held as under:
The charge does not disclose that the respondent had any case of recklessness or abuse of power or other misconduct by the petitioner. In such a case, whether the respondent (Registrar) had jurisdiction to initiate action against the petitioner in relation to an order passed by him while discharging his function as Judicial Officer, by framing such a charge, is the matter to be decided.
In our case, we find that the petitioner has not abused or misused his judicial powers while granting bail on a holiday exercising his discretionary powers in the interest of the parties, more so their freedom. The Division Bench, in the above said case, referred to the decision of the Queen's Bench Division in Anderson v. Gorrie 1895 [1] QBD 668 and various judgments of the Supreme Court and ultimately came to the conclusion that in view of the declaration of law by the Honourable Supreme Court and taking into consideration the charge and the evidence adduced, there was no justification for initiating disciplinary proceedings against the petitioner therein and quashed the impugned order as well as the impugned proceedings.
26. In P.C. Joshi case, cited supra, the appellant was a judicial officer. In a departmental enquiry, he was found guilty of certain charges and consequently, his services were terminated. The charges, inter alia, pertained to orders of bail granted in certain cases. In two of these cases, according to the enquiry officer, bail ought to have been granted on the very first application, but it was granted on the second application although the second application contained no fresh grounds. The appellant challenged unsuccessfully before the High Court his termination on the ground that none of the acts he was charged of, constituted misconduct. Dealing with the question of the alleged misconduct against the appellant, the Supreme Court held as under:
Inferences have been drawn by the enquiry officer only on the basis that either the applications had been rejected at earlier stage for grant of bail or such applications ought to have been granted at the first stage itself. However, no specific material was brought on record to show or prove that there were any mala fide or extraneous reasons on the part of the appellant in passing the orders.
The Supreme Court set aside the order passed by the High Court and directed the immediate reinstatement of the appellant in service with continuity of service and all consequential benefits such as payment of arrears of salary and other benefits. The Supreme Court referred to its earlier decision in Union of India v. A.N. Saxena and Union of India v. K.K. Dhawan 1993 [2] SCC 56. In K.K. Dhawan case, cited supra, the Supreme Court has indicated the basis upon which a disciplinary action can be initiated in respect of a judicial or a quasi judicial action as follows:
(i) where the judicial officer has conducted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty;
(ii) that there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii) that if he has acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(iv) that if he had acted in order to unduly favour a party;
(v) that if he had been actuated by corrupt motive The Supreme Court also quoted the observations made in paragraph 14 of the Ishwar Chand Jain, cited supra, which we have quoted above. In our case also, there is no material available on record to establish that the petitioner had granted bail on a holiday with mala fide intention or for extraneous consideration.
27. Therefore, following the above observations of the Supreme Court and applying the same to the facts and circumstances of the present case, we are thoroughly satisfied that there is no material on record to establish that the petitioner has granted bail for extraneous consideration. As stated above, except the present complaint, there were no other complaints against the petitioner during his whole service as judicial officer. Therefore, as held by the Supreme Court an honest, strict judicial officer is likely to have adversaries and if complaints are entertained on trifling matters relating to the judicial officers, as has been done in the present case, and if the judicial officers are under constant threat of complaints and enquiry on trifling matters, and if the High Court encourages anonymous complaints, no judicial officer would feel secure 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 the rule of law. Therefore, considering the entire facts and circumstances of the case and the material placed on record, we are of the view that the High Court should not have initiated the enquiry proceedings against the petitioner at all. We, therefore, set aside the enquiry proceedings as well as the punishment imposed on the petitioner.
28. In the result, the impugned order in G.O. (2D) No. 208 dated 29-09-1999 is quashed and the writ petition is allowed. No costs.