Karnataka High Court
Smt. Swathi S. Patil vs Union Of India (Uoi) Represented By Its ... on 15 December, 2005
Equivalent citations: 2006(199)ELT218(KAR), ILR2006KAR674, 2006(1)KARLJ441, 2008[9]S.T.R.434
Author: R. Gururajan
Bench: R. Gururajan
ORDER R. Gururajan, J.
1. Petitioner Swathi S Patil is before us seeking a writ of certiorari to quash the order dated 7.2.2005 passed by the Central Administrative Tribunal, Bangalore Bench, Bangalore in O.A. No. 564 of 2004 at Annexure-Z. She also sought for quashing of Memorandum dated 24.11.2005 at Annexure-Q and the order dated 29.6.2004 at Annexure-T in the case on hand.
2. Facts in brief: Petitioner joined Indian Revenue Services in 1974, She was working as Deputy Commissioner at Belgaum. She passed number of orders in her official capacity. First respondent, in respect of certain orders passed by the petitioner in 1988 and 1989, including the orders passed under Section 144-A in five cases posted before her, for some ulterior motive issued a memorandum dated 20.12.1995 assailing the quasi judicial orders passed by her as wrong without any evidence. Petitioner denied the allegations made against her by a reply dated 11.6.1996. Enquiry was held in respect of the said memorandum of charge dated 20.12.1995. Petitioner was examined on 4.12.1995, Enquiry Officer gave a finding that the petitioner was guilty in the matter. Central Vigilance Commissioner, agreed with the second respondent's proposal to impose major penalty on the petitioner. Petitioner submitted her representation dated 27.6.2001 to the second respondent in the matter. Thereafter, she filed an application O.A. No. 955 of 2001 before the Central Administrative Tribunal, Bangalore Bench, seeking to quash both the memorandum of charges and the enquiry officer's report. The Tribunal directed the respondents to consider the representation of the petitioner within 90 days in terms of the law declared in NAGARKAR's case . First and second respondents did not take any decision within the time stipulated by the Tribunal. Petitioner approached the Tribunal with another application in OA No. 1511 of 2001. The Tribunal allowed her application by its order dated 18.12.2002. In the light of the order of the Tribunal, petitioner gave a representation to provide her benefits flowing from the orders of the Tribunal. Ultimately first respondent issued an order on 5.6.2003 under Rule 14 of CCS (CCA) Rules, 1965 and dropped the proceedings initiated against the petitioner stating there in that after careful consideration of the matter the first respondent was of the view that the facts and circumstances of the case did not warrant imposition of any penalty against the petitioner. According to the petitioner, it is a partial compliance of the order of the Tribunal. An application was filed in MA No. 227 of 2003 in OA No. 1511 of 2001 before the Tribunal. The Tribunal granted six weeks time to comply with the order impugned therein. Thereafter, in the absence of compliance of the order, petitioner filed Contempt petition No. 156 of 2003. Notice was issued. Thereafter, a writ petition was filed in this Court by the respondent in WP No. 4007 of 2004. No stay was granted. Ultimately, first respondent issued an order on 12.3.2004 promoting the petitioner to officiate on regular basis as Commissioner of Income Tax with effect from 9.9.1998. However, first respondent failed to pay arrears of pay to the petitioner by way of consequential benefits. Tribunal issued further direction to submit an affidavit in the matter. Consequently, orders were passed and ultimately the Tribunal discharged the notices issued against Ist and 2nd respondents and disposed of the contempt petition.
First respondent again issued Memorandum of charges dated 24.11.2003 against the petitioner alleging four charges in terms of Annexure-Q. Petitioner denied the charges. Thereafter, first respondent appointed the third respondent as Inquiring Authority in the matter. Aggrieved by the memorandum of charges dated 24.11.2003 at Annexure-Q and also the consequential appointment of third respondent as Inquiring Authority in terms of Annexure -T, petitioner filed an application in OA No. 564 of 2004 before the Tribunal and sought for various prayers. Notice was issued and matter was heard. Tribunal has chosen to reject the application in terms of its order dated 7.2.2005 in terms of Annexure-Z. Annexure-Z is challenged in this petition.
3. Notice was issued. Respondents entered appearance.
4. Heard Sri Padke, learned Counsel for the petitioner.
He took us through the entire bulky paper book to say that the Tribunal is wrong in rejecting his application. He would invite our attention to the materila facts and material documents to say that the articles of charge in the given circumstances are legally and factually unsustainable. He would further say that the petitioner was exercising quasi judicial funcitions and those quasi judicial proceedings cannot be subjected to enquiry in terms of the case laws, according to him. He concludes by saying that the present case is fully covered by a decision of the Supreme Court in Zunjarrao Bhikaju Nagarkar v. Union of India and Ors.
5. Per contra, Sri Vasudeva Rao, learned Central Government Standing Counsel, would say with all vehemence that no case is made out by the petitioner warranting interference. He wants the petiton to be dismissed.
6. After hearing, we have carefully perused the material on record.
7. Indian Constitution stands for justice - social, economical and political. There are three essential wings which operate for the purpose of enforcement of various articles of the Constitution of India. Three organs are-Legislature, Executive and Judiciary. Judiciary plays a vital role in a democratic set up. Rule of law form foundation of democracy. Rule of law is implemented by the Judiciary. Unless the Judiciary is independent, laudable object of providing Constitutional fruits is defeated. Judiciary must be free from bias and it should act without fear or favour. If those who man the Judiciary are made to suffer fear psychosis or disciplinary proceedings on account of their judicial act, it would defeat the object of independent fearless Judiciary. Any judicial act, if tainted, has to be viewed seriously. But, a judicial act arising out of a bona fide mistake of law or facts, can never be subjected to disciplinary proceedings, since that bona fide mistake can be corrected in terms of judicial remedies. Courts have considered the scope of disciplinary proceedings in terms of judicial decisions. Officer taking 1.1999 SCC (L&S) 1299. decisions in exercise of quasi-judicial functions is not immune from the disciplinary proceedings. As to when is the question. Admittedly, in the case on hand, in terms of the articles of charge, petitioner is proceeded against certain quasi judicial decisions taken while working as a limb of the department. The Supreme Court in Zunjarrao Bhikajinagarkar v. Union Of India and Ors. has considered various case laws in the matter of misconduct while exercising quasi judicial power. In the case of Union of India v. K. K. Dhavan Court notices the case of Income Tax Officer in the matter of disciplinary proceedings. The Court ruled after noticing V.D. Trivedi v. Union of India Union Of India v. R.K. Desai Union Of India v. A.N. Saxena and the judgment of S. Govinda Menon v. Union Of India has ruled as under:
28. Certainly, therefore, the officer who exercises judicial or quasi judicial powers acts negligently or recklessly or in order to conferment of undue f avouritism 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 for 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.
8. In Union Of India v. Upendra Singh (1996) 3 SCC 357 the Apex Court again ruled that the Tribunal or the Court can interfere only if on the charges framed no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law and that at that stage the Tribunal had no jurisdiction to go into the correctness or truth of the charges. The order of the Tribunal was set aside.
9. In State Of Punjab v Ex-Constable Ram Singh, the Apex Court referred to the definition of misconduct and ruled as under:
6. Thus it could be seen that the word 'misconduct' though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, willful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve.
10. Recently, in Zunjarrao Bhijaji Nagarkar v. Union of India (Supra) has considered the case of Collector of Central Excise, in the matter of misconduct. The Court ruled as under:
A wrong interpretation of law cannot be a ground for misconduct. It is a different matter altogether if it is deliberate and actuated by mala fides. Negligence in quasi judicial adjudication is not careless, inadvertence or omission but a culpable negligence.
The Court further ruled:
Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no rule to play in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was not imposed and the Board in exercise of its power directed filing of appeal against the order-in-original passed by the appellant could not be enough to proceed against him. There is no other instance to show that in similar case, the appellant invariably imposed penalty.
Ultimately, the Court ruled that it was not the case for initiation of disciplinary proceedings against the appellant.
11. In P.C. Joshi v. State of U.P. and Ors. the Apex Court considered the judicial power vis-a-vis the misconduct. The Court ruled in para-8 of its judgment reading as under:
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. 10 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.
12. In the case on hand, we have carefully perused the articles of charge in terms of Annexure-Q. In so far as Articles 2, 3 and 4 are cocerned, there is absolutely no material forthcoming either with regard to any bias, favouritism, tainted action, mala fide, etc. on the part of the petitioner. It is not possible to accept the finding of the Tribunal that the petitioner has not made out a case for interference. The Tribunal in the impugned order has not chosen to consider the facts of case in its depth and in the light of the clear law laid down by the Apex Court for the purpose of interference. The Tribunal's finding that the charge relate to conferment undue favouritism, lack of integrity is factually unsustainable in so far as charges 2, 3 and 4 are concerned. We therefore have no hesitation in setting aside the finding of the Tribunal with regard to the continuation of the proceedings in so far as Articles 2, 3 and 4 are concerned. Counsel for the respondent also was unable to show from the material on record that there is an conferment of undue favouritism and lack of integrity in so far as these three charges are concerned. We accept the argument of Sri Phadke that these three charges cannot be inquired into on the peculiar facts of this case. Quasi-judicial orders, in the absence of any allegation, like undue favouritism, etc., cannot be a foundation for disciplinary proceedings.
13 Sri Vasudeva Rao, learned Counsel, relies on a decision of the Supreme Court in Union of India and Ors. v. K.K. Dhavan (Supra) to say that quasi-judicial authorities are not immuned from the disciplinary proceedings. There can be no quarrel over this proposition. As to when is they should be proceeded against is the question in the case on hand. Similiarly, State Bank Of Bikaner And Jaipur and Ors. v. Prabhu Dayal Grover is also not available since in the said case there were complaints in terms of the facts mentioned therein.
14 In so far as Article 1 is concerned, we find that the charge itself would show that the order was passed with mala fide intention. There is some material available in so far as Article No. 1 is concerned. It is mentioned therein that the petitioner did hold discussions with one of the partners. This Article stands on a different facts and that therefore we deem it proper to accept the finding of the Tribunal that no direction can be issued in so far as this Article No. 1 is concerned.
15 Before we conclude, we make it clear that unscrupulous elements have no place in the temple of justice. Corruption in any form including favouritism of different shades/different colour has to be dealt with iron hand in maintaining an unpolluted justice deli very system in this country. But, in that process an official/officer with quasi-judicial powers is not to be proceeded against without any factual foundation, and any such proceeding in such cases would be shaking the independence of judiciary.
16. In the result, this petition is partly accepted. Order of the Tribunal in so far as Article No. 1 is concerned is accepted. With regard to Articles Nos. 2, 3 and 4, petitioner is entitled to succeed. However, we deem it proper to observe as a word of caution that in the event of the respondent getting any further information with regard to tained action on the part of the petitioner, this judgment should not come in their way, and, liberty is reserved to them to act in a manner known to law and in accordance with law.
19. Ordered accordingly, No costs.