Karnataka High Court
Kazi Mohd. Muzeebulla vs The High Court Of Karnataka Ad Another on 7 April, 1999
Equivalent citations: ILR1999KAR2413, 1999(3)KARLJ550
Author: H.L. Dattu
Bench: H.L. Dattu
ORDER
1. When robed culprits violate moral-legal norms, the appointed agency steps in to see that the judiciary is functionally kept on course and any deviance or misconduct, abuse or aberration, corruption or delinquency is duly monitored and disciplinary measures are taken promptly to make it unprofitable for the delinquents to depart from the Code of Conduct. This is one such case. The High Court on the administrative side, had initiated domestic enquiry proceedings against one of its subordinate Judicial Officer by issuing a charge-memo dated 18-3-1992, toenforce punitive therapeutics. The memo contained charges of misconduct as Civil Judge, Gadag, during the year 1991. Among other things, it specified that as a Civil Judge, Gadag, with ulterior motive of conferring undue benefit on the claimants in LAC No. 13 of 1989 and in LAC No. 159 of 1990, had passed awards fixing the market-value of agricultural lands at an exorbitant amount and thereby had acted dishonestly, guilty of gross abuse of judicial power and in a way most unbecoming of Judicial Officer. The charge-memo also contained the statement of imputations, list of witnesses and documents. It also directed the charge-sheeted officer to file his written statement of defence, in writing, within 30 days of the receipt of the charge-memo as the domestic enquiry was proposed to be held against him.
2. The delinquent officer had filed his written statement of defence dated 3-11-1995, denying the accusations of the acts of misconduct alleged in the charge-memo. Since the explanation offered was unsatisfactory, the High Court appointed Sri D. Basavaraju, First Additional District and Sessions Judge, Dharwad, as Inquiring Authority to enquire into the charges of misconduct. The Inquiring Authority after holding a full fledged enquiry in accordance with the procedure specified in Karnataka Civil Services (Classification, Control and Appeal) Rules, 1957 (hereinafter for the sake of brevity referred to as 'CCA Rules') and in accordance with rules of natural justice had submitted his report, together with the records of the enquiry proceedings and other documents to the High Court on the administrative side. The Enquiry Officer is of the view that the charges are fully established and proved.
3. The High Court, after receipt of the report and the findings of the Enquiry Officer dated 1-2-1993, had issued a second show-cause notice dated 28-2-1993 along with the copy of the report to the charge-sheeted officer to show cause as to why report of the Inquiring Authority should not be accepted. The delinquent officer had replied to the show-cause notice and had complained that the report is not based on evidence, both oral and documentary, that there is no illegality or impropriety in awarding compensation in the two LAC cases, and lastly awards passed by him are in bona fide exercise of judicial powers and as such they cannot be subject-matter of departmental enquiry proceedings. Since the explanation offered by the delinquent officer was unsatisfactory, the High Court accepted the findings of the Inquiring Authority and decided to impose a major penalty. Pursuant to this decision, it appears, High Court had issued one more notice to the charge-sheeted officer to reply as to why the penalty of dismissal from service should not be imposed. After receipt of reply filed by the delinquent officer, after framing appropriate resolution to impose a penalty of dismissal from service, it has made recommendation in that regard to the Governor, since the Governor is the Appointing Authority. The Governor after considering the report of the Inquiring Authority, the recommendation made by the High Court, and after concurring with the findings and the recommendation, has passed a formal order of dismissing the charge-sheeted offi-
cer from judicial service in accordance with the recommendation of the High Court by an Order in No. LAW 34 LAC 96, dated 23-7-1996 for unbecoming behaviour, dereliction of duty and judicial dishonesty and integrity, to uphold judicial prestige and to send and spread the message that "Be you ever so high, the law, in its equal majesty, is above you too" and to rid the system of pathological offenders with the robes on and to inspire confidence that even justices are accountable. It is the correctness or otherwise of this order is called in question by the delinquent officer in this petition filed under Article 226 of the Constitution, being aggrieved by the same.
4. Sri Rajesh Mahale, the learned Counsel for the petitioner contends that the prime accusation against petitioner was that, the officer with an ulterior motive had conferred certain benefits to the claimants in Land Acquisition cases and that 'ulterior motive' is not proved by the employer by any cogent evidence and therefore, the findings of the Enquiry Officer that the petitioner is guilty of the charges is not based on any evidence. Nextly, it is contended that since the findings are not based on any legal evidence, the same is perverse. It is further submitted that the disciplinary enquiry proceedings could not have been initiated against the petitioner with regard to exercise of his judicial powers while deciding a case before him. Fourthly, it is submitted that non-supply of the decision taken, on the reply filed by the petitioner to the second show-cause notice would vitiate the entire enquiry proceedings and the consequent order imposing the major penalty by the Disciplinary Authority and it is further stated since the second show-cause notice is not issued by the punishing authority but only by the recommending authority, the procedure is contrary to the CCA Rules and is in violation of rules of natural justice. Lastly, it is asserted that the impugned order is a non-speaking order, since it contains no reason, therefore, the order is bad, invalid and arbitrary. A request is made to set aside the impugned order and direct the respondents to reinstate the petitioner into judicial service with all consequential service and monetary benefits.
5. Per contra, Sri A.K. Patil, learned Government Pleader ably justifies the impugned order. In support of his stand, brings to the notice of this Court, the observations made by the Supreme Court in the cases of Sita Ram Bhau Patil v Ramchandra Nago Patil (dead) by L.Rs and Another, V.R. Katarki v State of Karnataka and Others, Union of India v K.K. Dhawan and Registrar, High Court of Madras v R. Rajiah and Another.
6. The issues that requires to be considered and decided are:
(i) Whether the initiation of the domestic enquiry proceedings by the appointing/Disciplinary Authority is legal and justified?
(ii) Whether the findings of the Enquiry Officer is based on evidence available on record or is it perverse?
(iii) Whether the non-supply of the decision taken on the objections filed to the second show-cause notice would vitiate the enquiry proceedings and whether the second show-cause notice should have been issued by the Disciplinary Authority alone?
(iv) Whether the impugned order is bad and invalid since it does not contain reasons?
(v) What order?
7. Let me commence the discussion, first by extracting what Sir Win-ston Churchill, decades back told the commons "that the Judges are required to conform to standards of life and conduct far more severe and restricted than that of ordinary people. Indeed their constitutional obligation to do justice without fear or favour, affection or ill-will, is a high moral command and exacting demand on their conscience. If "you are what you wear" you have to keep up certain manner of conduct, which puts you in a category beyond the members of bureaucracy and politicians. Judges, like Caesar's wife, must be above suspicion.
8. The Code of Conduct for Officers in judicial service is both written and unwritten. The written Code is that every officer has to be obedient, faithful, honest and reasonably competent to discharge his duties. The unwritten Code of Conduct is more serious and severe. The Judges are expected to maintain highest degree of judicial discipline, otherwise, the public confidence in the judiciary may wane. The Judges are commanded to avoid not only actual impropriety but also the appearance of impropriety in all their activities and these unwritten Codes are too many and extremely difficult to put it across in a judgment; and at the same time, the litigants also may not be interested in ponderous judgments.
9. Now coming back to the legal issues canvassed, the Supreme Court in the case of Union of India v J. Ahmed, was pleased to observe that "any act may not involve 'mens rea' and may still constitute misconduct. Again, in the case of K.K. Dkawan, supra, the Apex Court was pleased to observe:
"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 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 for integrity or good faith or devotion of 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".
10. The aforesaid view of the Apex Court is reiterated in the subsequent decisions rendered by Supreme Court. In my view, all those decisions need not be noticed by me for the disposal of this petition. It would be suffice, to keep in view the observations made by Apex Court, that when an officer in exercise of judicial power acts negligently or recklessly or in order to confer undue favour on a person, 'he is not acting as a Judge'. Keeping in view this cardinal principles, let me now refer to the undisputed facts in the present case. The Presiding Officer hails from the same town and has properties and relatives as that of claimant in LAC No. 13 of 1989 in the same town. The claimant had claimed only Rs. 25,000/- per acre of an agricultural lands in Sy. No. 11/2 situate at Laxmeswar town. The enhancement application filed for claiming higher rate of compensation had been rejected by the same Presiding Officer and lastly, the claimant had agreed to sell the entire immovable property measuring 3 acres and 20 guntas to Gadag Municipality in a sum of Rs. 48,500/- and had also received a sum of Rs. 5,000/-as advance amount, and ignores all this, and still awards a compensation amount of Rs. 13,06,800/- per acre, in all Rs. 45,73,800/- for an extent of 3 acres and 20 guntas for agricultural lands by fixing the market-value of the land at Rs. 30/- per sq, ft. Similar award is passed in LAC Case No. 159 of 1990, while fixing the market-value of the land in Sy. No. 2, measuring an extent of 4 acres and 20 guntas in the same town. To demonstrate all is not fair, just and impartial, the employer has not only examined the local witnesses but also senior members of the Bar, who with their deep concern, to see that the judiciary is kept at a lofty levels, speak very gently against their Presiding Judge but at the same time, in one voice, they speak about his shortcomings. Their suspicion is well supported by one Sri Guddadevaramath, the ex-municipal President, Laxmeswar, Municipal Councillor, Sri Sirajuddin Miya Saheb Patewardar and other local witnesses in their evidences before the Inquiring Authority. An overall scenario if taken into consideration, the only inference that could be drawn is that the delinquent officer has not followed the recognised and well-known methods of valuation while fixing the market-value of an agricultural land and has abused his judicial power with the sole intention of conferring undue favours to the claimants in LAC Cases 13 of 1989 and 159 of 1990. The conduct of the Delinquent officer is not only incompatible but also inconsistent with the faithful discharge of his judicial functions. The Supreme Court in the case of V.R. Katarki, supra, was pleased to observe:
"We would like to make a special mention of the position, that even if the assessment of valuation is modified or affirmed in appeal as a part of the judicial process, the conduct of the judicial officer drawable from an overall picture of the matter would be yet available to be looked into. In appropriate cases, it may open to draw inferences even from Judicial Acts".
11. The Apex Court in K.K. Dkawan's case, supra, reiterate the aforesaid view. The observation made by the Supreme Court is as under:
"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 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 for integrity or good faith or devotion of 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" ".
12. In my view, in view of this well-settled legal principles, the initiation of the domestic enquiry proceedings against the petitioner is legal and well-justified.
13. The next question that requires to be considered and decided is whether the findings of the Enquiry Officer is perverse? Whether this Court can interfere with the findings arrived at by the Inquiring Authority, while exercising the power of judicial review under Article 226 of the Constitution? The first question is purely a question of fact. This Court under Article 226 of the Constitution is not an Appellate Authority while reviewing a question of fact. Therefore, this Court cannot review the evidence and reverse a finding of fact based on some legal evidence. It is only if the findings of the Inquiring Authority is not based on any evidence or is based on inadmissible evidence, this Court can interfere with the findings of the Enquiry Officer. The power of judicial review in a domestic enquiry proceedings is now explained by Supreme Court in the case of Syed Yakoob v K.S. Radhakrishnan and Others. In the said decision, the Court was pleased to observe that the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it, is not entitled to act as an Appellate Court. This limitation necessarily means that finding of fact reached by the inferior Court or the Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. The petitioner can succeed only if he is in a position to say that the Labour Court erroneously refused to admit admissible and material evidence or it erroneously admitted inadmissible evidence which had influenced the impugned findings. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by writ of certiorari. However, a finding of fact recorded by the Tribunal or Labour Court cannot be challenged in proceedings for a writ of certiorari on the ground that relevant material evidence before the Tribunal was insufficient or inadequate to sustain the impugned findings. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding being within the exclusive jurisdiction of the Tribunal such points cannot be agitated before a Writ Court.
14. This well-settled legal position is reiterated by Apex Court in the case of B.C. Chaturvedi v Union of India. In the said decision, the Court was pleased to observe:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an enquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom the Disciplinary Authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as Appellate Authority to re-appreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the Disciplinary Authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case".
15. The Supreme Court in the case of High Court of Judicature at Bombay v Udaysingh, was pleased to observe:
"But the disciplinary proceedings are not a criminal trial. Therefore, the scope of enquiry is entirely different from that of criminal trial in which the charge is required to be proved beyond doubt. But, in the case of disciplinary enquiry, the technical rules of evidence have no application. The doctrine of proof beyond doubt" has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion".
16. A summary of this decision of the Apex Court would clearly indicate that the power of judicial review by this Court under Article 226 of the Constitution is very much limited. The tests that are laid down for exercising the powers are, when the departmental authorities have held the proceedings in a manner inconsistent with the rules of natural justice, or in violation of statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could have arrived at that conclusion or on similar grounds.
17. Keeping in view these principles, I have carefully perused the accusations made against the delinquent officer in the charge-memo and the findings of the Enquiry Officer. The Enquiry Officer has dealt with each one of the charges alleged against the delinquent officer with the evidence, both oral and documentary evidence available on record, to come to the conclusion that the delinquent officer is guilty of the charges alleged against him in the charge-memo. While coming to this conclusion, the Enquiry Officer has not relied upon any extraneous material or evidence or is influenced by irrelevant considerations. In that view of the matter, it cannot be said that the findings of the Enquiry Officer is wholly perverse which would vitiate the entire enquiry proceedings. In my view, since I am affirming the findings of the Enquiry Officer, it may not be necessary to go into the details of the accusations made against the delinquent officer and the evidence adduced by the respondents in support of those allegations. Accordingly, the contention canvassed by the learned Counsel for the petitioner that the findings of the Enquiry Officer is perverse requires to be rejected.
18. The next question that requires to be considered and decided is whether the second show-cause notice should have been issued only by the Disciplinary Authority and whether the High Court was obliged to furnish the decision taken on the objections filed by the delinquent officer to the second show-cause notice. In my opinion, these issues are no more debatable in view of the law declared by Supreme Court in the case of Registrar, High Court of Madras, supra. In the said decision, the Court was pleased to observe:
"10. Article 235 vests in the High Court, the control over District Courts and Courts subordinate thereto. The vesting of such control is consistent with the ideal of preservation of the independence of the judiciary. The power of control comprises within it various matters in respect of subordinate judiciary including those relating to appointment, promotion and imposition of punishment, both major and minor. If any authority other than the High Court is conferred with the absolute right to take action against a member of the subordinate judicial service, such conferment of power will impinge upon the power of control that is vested in the High Court under Article 235 of the Constitution.
12. The test of control is not the passing of an order against a member of the subordinate judicial service, but the decision to take such action. It may be that so far as the members of the subordinate judicial service are concerned, it is the Governor, who being the Appointing Authority, has to pass an order of compulsory retirement or any order of punishment against such a member. But passing or signing of such orders by the Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution. An action against any Government servant consists of two parts. Under the first part, a decision will have to be made whether an action will be taken against the Government servant. Under the second part, the deci-
sion will be carried out by a formal order. The power of control envisaged under Article 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service. Such a decision is arrived at by holding an enquiry by the High Court against the member concerned. After the High Court comes to the conclusion that some action either in the nature of compulsory retirement or by the imposition of a punishment, as the case may be, has to be taken against the member concerned, the High Court will make a recommendation in that regard to the Governor and the Governor will act in accordance with such recommendation of the High Court by passing an order in accordance with the decision of the High Court. The Governor cannot take any action against any member of a subordinate judicial service without, and contrary to, the recommendation of the High Court.
16. It is apparent from the observation extracted above that this Court also understood the power of control of the High Court as the power of taking a decision against a member of the subordinate judicial service. The High Court is the only authority that can take such a decision. The High Court will hold an enquiry and decide on the result of such enquiry whether any action will be taken against a member of the subordinate judicial service. If it comes to the conclusion that such an action is required to be taken, it will make a recommendation in that regard to the State Governor who will make an order in accordance with the recommendation of the High Court".
19. In view of the law declared by the Supreme Court in the aforesaid decision, the contention of the learned Counsel that the second show-cause notice should have been issued only by the punishing authority has no merit. Accordingly, it requires to be rejected.
20. Nextly, in the absence of any rules or regulations providing for communicating the decision taken on the reply filed to the second show-cause notice, the mere non-supply of decision taken to the delinquent would not vitiate the enquiry proceedings, since the same would not be in violation of any statutory rules or in violation of principles of natural justice. Therefore, the submission that non-supply of the decision taken on the reply filed to the second show-cause notice would vitiate the enquiry proceedings has no substance. Accordingly, it requires to be rejected.
21. Lastly, the learned Counsel contends that the impugned order framed by the Disciplinary Authority is a non-speaking order since it does not contain any reasons whatsoever. Before I consider this contention of the learned Counsel, let me first notice the observations made by the Supreme Court in the case of State Bank of Bikaner v Prabhu Dayal Grover. In the said decision, the Court was pleased to observe as under:
"13. In view of the answer so given, it has to be now seen whether under the Regulations, the concerned authorities are required to give reasons for their decisions. Regulation 68(3) lays down the procedure the Disciplinary Authority is required to follow after it receives the proceedings of the enquiry including the report of the Enquiry Officer. On careful perusal thereof we find that only in those cases where the Disciplinary Authority considers it necessary to direct fresh or further enquiry or disagrees with the findings of the Enquiry Officer, it has to record the reasons for its such directions, but there is no such obligation if it agrees with the findings of the Enquiry Officer. It can, therefore, be legitimately inferred that when express provisions have been made in the regulations for recording reasons in only the first two of the three fact situations and not the other - there is no implied obligation also to record the reasons in case of concurrence with the findings of the Enquiry Officer. Even if we proceed on the basis that such an obligation is implicit, still the order of the Disciplinary Authority cannot be held to be bad as, on perusal thereof, we find that before concurring with the findings of the Enquiry Officer it has gone through the entire proceeding and applied its mind thereto. In our considered opinion, when the Disciplinary Authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to re-appraise the evidence to arrive at the same findings. We are, therefore, unable to accept the contention of Mr. Dutta that the order of punishment is liable to be struck down as it was a non-speaking order and did not contain any reason".
22. Keeping in view the law declared by the Supreme Court, let me now peep into the orders passed by the Disciplinary Authority. The Disciplinary Authority after being satisfied that the entire enquiry proceedings were held in accordance with CCA Rules and in accordance with the principles of natural justice and after considering the recommendation made by the High Court has proceeded to frame the impugned order. Therefore, it is difficult to accept the contention of the learned Counsel that the impugned order does not contain any reasons whatsoever.
23. These are the only contentions canvassed by the learned Counsel for the petitioner. Since, I have negatived all the contentions canvassed, petition deserves to be dismissed.
24. Before I part with the case, let me recall the observations made by Justice Krishna Iyer (as he then was) in his book "Justice At Cross Roads" on the topic 'Judicial Accountability', the learned Author remarks that:
"Judge power is vast and strong in the keeping of those who are fearless and flawless surrogates of public justice. But the judiciary as a fiduciary must pay a price - they must be clean in public and private life, on the bench and off the bench and be worthy to be watch dogs, not lap dogs sentinels, not sycophants".
The justice system is our only stable asset, as yet not corrupt, let us preserve it.
25. In view of my conclusions, petition deserves to be dismissed. Accordingly, it is dismissed. Rule discharged. In the facts and circumstances of the case, parties are directed to bear their own costs. Ordered accordingly.