High Court Of J&K vs Vijay Kumar Atri And Anr on 7 December, 2009

[Cites 9, Cited by 0]

Jammu & Kashmir High Court

High Court Of J&K vs Vijay Kumar Atri And Anr on 7 December, 2009

Author: Sunil Hali

Bench: Barin Ghosh, Sunil Hali

       

  

  

 

 
 
 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            
LPASW No. 91 OF 2009 AND LPASW No. 99 OF 2009         
1. High Court of J&K.
2. A. K. Shan.
Petitioners
1. Vijay Kumar Atri and anr.
2. State of J&K and ors.
Respondent  
!Mr. M. I. Qadri, Advocate General AND Mr. D. C. Raina, Sr. Advocate in LPASW no. 99/2009 
^M/s. K. K. Pangotra and S. K. Raina, Advocates for respondent no. 1.

Hon'ble Mr. Justice Barin Ghosh, Chief Justice.
Hon'ble Mr. Justice Sunil Hali, Judge
Date: 07.12.2009 
:J U D G M E N T :

Per Barin Ghosh, Chief Justice:

The writ petitioner, respondent in these appeals, a Munsiff appointed on December 8, 1980, was promoted to the post of Sub-Judge in the year 1988. On July 28, 1994, he was suspended pending inquiry. On October 29, 1994, he received a charge sheet. The same contained eleven charges. He replied the charge sheet by a letter dated December 22, 1994, 2 whereby he denied all eleven charges. The charges were thus inquired into, first by a Hon'ble Judge and later, on his Lordship's transfer from this Court to another Court, by another Hon'ble Judge, who concluded the inquiry and submitted his report. On April 10, 1998, the second show cause notice was issued, a copy of the inquiry report was enclosed therewith. The said show cause notice indicated that the Hon'ble Court has agreed with the report of the Inquiry Officer that the charges 8 and 11 stand proved and further the Hon'ble Court has come to the conclusion that charge no. 1 is also proved on evidence. The said show cause, however, did not indicate the reasons to support the said conclusion. The said show cause expressed that the Hon'ble Court has provisionally come to the conclusion that the respondent is not a fit person to be retained in service and that a major penalty of removal from service should be imposed upon him. The show 3 cause gave an opportunity to the respondent to make representation on the penalty proposed.

Respondent represented on February 5, 1998 against the proposed punishment. On August 29, 2000, an order was passed by the order of the Governor of the State of J&K, whereby and under the respondent was removed from service with immediate effect.

The respondent then approached this Court and filed a writ petition, which was registered as SWP no. 126/2001. In the writ petition the following contentions were put forward.

(a) For the purpose of inquiry, suspension, punishment, etc. no separate Rules are prescribed or framed to govern the services of Subordinate Judicial Officers. For this purpose, Rules contained in the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 are followed. In such view of the matter, the Disciplinary Authority is His Excellency the Governor and the Government and not the High Court;

(b) The Hon'ble Court has not recorded its reasons and grounds for differing with the inquiry officer in relation to charge no. 1 and/or reaching to a 4 different conclusion;

(c) The Government appears to have differed with the finding and proposed punishment of removal from service with the High Court for good and sufficient reasons and communicated its views but the Hon'ble High Court, thereafter, did not consider the matter in a detached manner; and

(d) Findings on charges no. 1, 8 and 11 are based on no evidence and are perverse in nature.

To support the last contention, it was contended that Shri Ashok Kumar Shan, the then District Judge, Leh was the person responsible for framing the petitioner. Shri Ashok Kumar Shan was, however, not a party to the writ petition.

In the counter affidavit filed by the High Court, it had denied the material averments made in the writ petition.

A learned Single Judge, by an order dated December 17, 2007, directed Shri Ashok Kumar Shan, the then District and Sessions Judge, Leh, to be impleaded as a respondent to the writ 5 petition. The said order was appealed against by Shri Ashok Kumar Shan and a Division Bench in LPA no. 176/2007, set aside the said order. Shri Ashok Kumar Shan thus remained a non-party to the writ petition. The writ petition was then heard and decided by the judgment and order under appeal dated June 2, 2009, whereby order dated August 29, 2000 was quashed with certain consequential directions and a copy of the said judgment and order was directed to be communicated to the Registrar General for placing the same on the personal file of Shri Ashok Kumar Shan, the then District and Sessions Judge, Leh.

A look at the judgment and order under appeal would show that contentions 1 and 3 mentioned above were not urged before the learned Single Judge. Those have also not been urged before us.

Before appreciating the judgment and order under appeal, it would be appropriate to take 6 note of charges no. 1, 8 and 11, which are as follows.

1. That in a challan covering Mini Bus with Registration Mark and No. JK01- 6507, a fine of Rs. 2,500/- has been imposed and Receipt No. 051083 dated 2.11.1993 issued for the amount to the Driver. Whereas, the counter foil of the receipt in the receipt book reveals that only fine of Rs.1300/- has been shown to have been imposed and remitted in Treasury. The amount of Rs. 1200/- has been either misappropriated or the amount has been received as illegal gratification.

8.That after convicting and punishing one Gopal Singh with a fine of Rs. 350/- on 7.6.1994, for driving the Scooter no. 3508 without RC, IC and DC, you assisted by your PSO, appeared at the shop of Gopal Singh seized the Scooter for non-payment of the fine and carried the Scooter and Gopal Singh to the Police Station with instructions to concerned Police Officer to keep the shop keeper said Gopal Singh in Police Station till he comes back or rings them up. Your acts of visiting the shop of Gopal Singh to receive the fine, seized the scooter, arrest Gopal Singh and then to keep the Scooter and Gopal Singh at the Police Station, amounts to violation of provisions of law with regard to recovery of fine and wrongful confinement, besides display of conduct unbecoming of a Judge.

11.That after availing leave for 15 days ending Ist Feb. 1994, you failed to apply for extension of leave in time (from 2.2.1994 to 17.2.1994) and no leave whatsoever was applied for from 18.2.1994 to 3.3.1994 and again failed to apply for further leave from time and through proper channel. You left the station Leh without seeking permission from the competent authority and your un-authorized absence is in violation of leave rules and breach of Judicial discipline. In relation to charge no. 1, the learned Judge held in the order under appeal that charge no. 1 had not been reported to have been proved in the enquiry report, but while disagreeing with the said finding, the disciplinary authority did not record any reason, when it was incumbent upon it to record its reasons for differing with the finding of the Inquiry Officer and to furnish the same to the respondent in order to give him an opportunity to respond to the same. The learned Judge held that on the basis of the said charge, no punishment order could be passed. In relation to charge no. 8. the learned Judge 8 felt that witnesses gave contradictory statements, two of the witnesses namely Surinder Singh and Gopal Singh gave false evidence, the inquiry officer should not have relied upon their evidence, their evidence casts doubt regarding involvement of Shri A. K. Shan into the whole matter, in particular instigating Gopal Singh and Surinder Singh to make false statements against the respondent and that the petitioner has rightly attributed mala fide on the part of Shri A. K. Shan. While doing so, the learned Judge recorded that Shri A. K. Shan was impleaded as a party to the writ petition on the own motion of the Court, he was duly served but has not chosen to file any response and, therefore, the allegations remained unchallenged and un-rebutted and should be deemed to have been admitted.

Insofar as charge no. 11 is concerned, the learned Judge observed that it is not borne out from the record that the petitioner after availing 9 earned leave with effect from January 18, 1994 to February 17, 1994, joined duties on February 18, 1994. The learned Judge further observed that, therefore, it is difficult to accept the pleadings of the petitioner that he actually joined his services on the said date. The learned Judge held that the period of absence from February 18, 1994 to March 3, 1994, has been attributed as a period of unauthorized absence, which means, without official permission but since this absence was preceded by a leave, the absence cannot be attributed to unauthorized absence. The same should be treated as overstaying leave and removal from service for non-submission of application for extension of leave would be a punishment not commensurate with the said act on the part of the respondent.

Being aggrieved by the judgment and order rendered on the said writ petition, two appeals have been filed. One has been filed by the High 10 Court and the other by Shri Ashok Kumar Shan. Learned Advocate General, appearing in support of the appeal preferred by the High Court, submitted that the reason for differing with the views of the Hon'ble Inquiring Judge on charge no. 1 was that the said charge stands proved on evidence on record and the same was duly indicated in the second show cause notice dated April 10, 1998. It was submitted that in that background, it cannot be contended that the reason for differing with the Hon'ble Inquiring Judge had not been indicated. Learned Advocate General submitted that the finding of the learned Single Judge is not that charge no. 8 was not proved on evidence or that there was no evidence to support the same. Instead, the Hon'ble Judge re-appreciated evidence and substituted his views with that of the inquiry officer and the disciplinary authority. He submitted that the same is not permissible, while exercising power of judicial review. The learned 11 Advocate General submitted that facts accepted and recorded in the judgment, show that charge no. 11 stands proved. He submitted that overstaying leave without permission is also unauthorized absence. He added that if punishment of removal on account of unauthorized absence is excessive, on that ground, though the order of removal could be quashed but the matter could not be closed, the same ought to have been remitted back to the disciplinary authority, inasmuch as, a finding that the punishment is excessive, tantamounts to a finding that the guilt is punishable, though may not be by way of removal.

Shri D. C. Raina, learned Senior Advocate, appearing in support of the appeal preferred by Shri A. K. Shan, submitted that the learned Judge while rendering the judgment and order under appeal, did not take notice of the fact that addition of his client to the writ petition by order of the learned Single Judge dated December 17, 12 2007, was set aside by Division Bench in LPA no. 176/2007 on December 16, 2008 and, accordingly, Shri A. K. Shan was not a respondent to the writ petition and, as such, had no occasion to respond to the averments made in the writ petition. He submitted that the learned Judge erred in holding that Shri A. K. Shan, though was a party to the writ petition, was duly served, but has not chosen to file any response to the allegations leveled against him. He further submitted that the learned Judge, in the facts and circumstances of the case, could not conclude that the allegations made against Shri A. K. Shan remained un-challenged and unrebutted and, accordingly, should be deemed to have been admitted. He, lastly, contented that a man cannot be condemned un-heard. He, accordingly, submitted that all observations made in the judgment and order under appeal against his client, Shri A. K. Shan, should be expunged and the direction that the order should 13 be made a part of the personal file of Shri A. K. Shan, should be set aside.

Learned counsel, Shri K. K. Pangotra, appearing on behalf of the respondent in both the appeals, by and large, supported the judgment and order under appeal and did not highlight any other issue to be considered by us. We have heard learned counsel for the parties and perused the records. Having regard to the controversies raised in the appeals, I feel, it would be appropriate to dispose of both of them by a common judgment. I, accordingly, on my behalf, shall make an effort to deal with the appeals as follows. Before I proceed further, it would be appropriate on my part to deal with the contentions pertaining to charge no. 1. In the inquiry report, the Hon'ble Inquiring Judge, in no uncertain terms held, for the reasons recorded by His Lordship, that charge no. 1 has not been proved. In order to arrive at such reason, the 14 Hon'ble Inquiry Judge referred to the evidence on record. On the self same evidence, it was opined in the second show cause that the said charge stands proved. While, however, expressing such opinion, no reason had been furnished. The respondent was not, therefore, informed as to why the evidence on which there was a pronouncement that the said charge has not been proved, should be taken to have been proved.

The requirement of furnishing reason in support of a conclusion is to let the person, who is likely to be affected by such conclusion, to know why the matter has been concluded thus. In a disciplinary proceeding, the disciplinary authority may hold inquiry and thereupon conclude the matter. If the inquiry part is delegated to an inquiring authority, the said authority is required to report back to the disciplinary authority the result of his inquiry. While furnishing the result of the inquiry, he 15 having been appointed to inquire into the charges, it is obligatory upon him to opine whether the charges brought against the delinquent stand proved and, if so, to indicate reasons in support thereof. Such reasons can be said to be reasons when they are founded on evidence on record. The result of the inquiry, as submitted in the inquiry report, is not binding on the disciplinary authority. The disciplinary authority may, or may not, accept the report. It may accept a part of the report and reject the other. While, however, the result of inquiry records a finding that a particular charge under inquiry has not been proved and such finding is based on evidence on record, it is obligatory on the part of the disciplinary authority, if it feels that the said charge too stands proved on evidence on record, to give reasons in support thereof. It is now well settled that furnishing of a copy of inquiry report to the delinquent is compliance of a part of mandatory requirements 16 of natural justice, inasmuch as, only when the inquiry report has been perused by the delinquent, he gets an opportunity to know how the mind of the inquiring authority worked while appreciating evidence on record and gets an opportunity to point out to the disciplinary authority that having regard to the nature of evidence on record, the inquiring authority has not appropriately applied his mind. The same principle applies when the disciplinary authority holds that a charge stands proved, which has been reported by the inquiring authority as not proved. Law requires the disciplinary authority, who has perused the enquiry report in the absence of the delinquent, to give an opportunity to the delinquent in such circumstances to let him know how his mind worked, while considering the report and evidence on record, so as to enable him to point out to the disciplinary authority that having regard to the nature of evidence on record, the 17 disciplinary authority has not correctly held that the said charge stands proved. Unless the disciplinary authority give reasons,the delinquent is not in the know how the mind of the disciplinary authority has worked while appreciating evidence on record. Failure on the part of the disciplinary authority in disclosing its mind by not disclosing reasons in such circumstances is denial of natural justice. In the circumstances, I am of the view that since no reason was furnished by the disciplinary authority, while indicating in the second show cause that charge no. 1 stands proved on evidence on record, the disciplinary authority denied justice to which the respondent was entitled, and, accordingly, in law, the order of removal, cannot be sustained on the basis of charge no. 1.

In relation to charge no. 8, the respondent in his reply to the charge sheet dated December 22, 1994, stated as follows.

That charge 8 is also denied.

The fine of Rs.350/- was imposed as warranted under law and per judicial discretion on the scooterist who was found guilty of offences under Motor Vehicles Act. But, it is vehemently denied that I ever visited the shop of the said scooterist or seized the scooter or got him arrested or instructed his detention and locking up in the police station. It is submitted that while I was out on traffic checking challan for driving scooter No. 3508/PCR without registration certificate, Insurance Certificate and driving licence was presented against one Gopal Singh and I had imposed a fine of Rs. 350/- on him. The scooter was already seized by the traffic police.

The accused deposited Rs.

300/- and under the pretext of bringing Rs. 50/- from his home situated nearby he sought permission to go to and fetch the said amount but did not turn up. The accused, that way, gave a slip. As would be evidenced from charge no. 8, the mis-conduct alleged was not convicting and punishing Gopal Singh with a fine of Rs. 350 on June 17, 1994 for driving Scooter no. 3508 19 without RC, IC and DC, but the charge was after such fine was imposed, the respondent with his PSO went to the shop of Gopal Singh, seized the scooter for non-payment of fine and carried the scooter and Gopal Singh to the police station with instructions to concerned police officer to keep Gopal Singh in police station till he comes back or rings them up. It was indicated that the act of visiting the shop of Gopal Singh to receive fine, seizure of scooter, arrest of Gopal Singh and then keeping the scooter and Gopal Singh at police station were mis-conduct on the part of the respondent. In the reply to the charge sheet, it was accepted that fine of Rs. 350 was imposed, the accused deposited Rs. 300, under pretext of bringing the remaining sum of Rs. 50 sought permission to go, but did not turn up and thus the accused gave a slip. It was contended that the scooter was seized by the traffic police. It was denied that the respondent visited the shop of the 20 said scooterist or seized the scooter or got him arrested or instructed his detention and locking up in the police station. Therefore, there was no dispute that a fine of Rs. 350 was imposed, a part of that was not deposited and, under the pretext of bringing the same, the accused gave a slip. The dispute was whether the respondent visited the shop of the said scooterist, seized the scooter, got the scooterist arrested and instructed his detention and locking up. In respect of the said charge, the judgment and order under appeal records the following evidence on record.

In this regard, it be seen that the Enquiry Officer has examined one Surinder Singh who is the brother of Gopal Singh. He deposed before the Enquiry Officer that his brother Gopal Singh had been fined Rs.

1000/-, out of which Rs. 300/- were paid and remaining amount could not be paid. He further stated that he was under an impression that the fine has been imposed by Mr. Shan as he was already treating Mr. Atri as Mr. Shan. He has further stated that when the scooter was seized by the police on the instructions of Mr. Atri, 21 he went to the residence of Mr. Shan and moved an application for release of the scooter and it was on the next day that the scooter was released.

In his cross-examination, Surinder Singh stated as under:-

He stated that during this episode he has always thought that the Judge in question was Mr. Shan as he was always treating Mr. Atri as Mr. Shan, therefore, he went to the residence of Mr. Shan, thinking that it was he who had fined his brother. He stated that on reaching there, he saw a different person and he narrated the whole story to Mr. Shan, then, when he realized the difference, he came up with an application to the Sessions Judge for release of the scooter and also of his brother. He submitted that he wrote the application himself and he does not remember whether he has affixed any stamp on it or not. He does not remember whether Mr. Shan had called any report from the police. He submitted that his brother was released immediately when Mr. Shan telephoned the police station. The scooter was released on the next day. There was as written Docket from the court of Sessions Judge for the release of the scooter. He further stated that Sessions Judge has told him that no fine was needed to be paid as the case has been closed. 22 Gopal Singh was also examined.

He deposed that on 7th of June' 94, when he was driving the scooter, he was stopped by the traffic police. But as he was not having the papers, he was fined Rs. 1000 by the Magistrate. He has deposed that he did not know Mr. Atri and was of the impression that he was fined by Mr. Shan. He has further stated as he was not able to pay the whole fine, Mr. Atri, accompanied by a policeman came to his shop after one or two days and directed him to drive the scooter to police station, where he was kept under lock up and was released after an hour when someone had telephoned in the police station.

Another witness examined by the Enquiry Officer is H. C. Krishan Kumar, a police official, posted at that time at police station, Leh. He deposed that on the asking by another Constable, he came out of the police station and met Mr. Atri, C.J.M, Leh, who told him that a scooter has been seized by him regarding which an entry was directed to be made in the register concerned. He further deposed that he did not see the owner of the scooter nor the person who had brought the scooter. It was after some time that a person came to the police station and claimed himself to be the owner of the scooter. He further deposed that Sessions Judge telephoned him and asked him why somebody was kept 23 in lock-up. He, however, denied that someone was kept in custody. The scooter as per him was released on the orders of Sessions Judge.

At this stage, it would be apt to notice the statement made by one Vijay Kumar Bhan, who was serving as Nazir in the court of C. J. M, Leh at the relevant time. He has deposed that on 7th of June'94, pursuant to challan EXPW-NA and conviction recorded overleaf imposing fine of Rs. 350/- I had taken Rs. 300 from accused Gopal Singh. I had not issued any receipt of this amount because the accused had told me that he would pay the balance Rs.

50 next day. He deposed that he did not even reflect this in any accounts book nor even deposited the said amount of Rs. 300 in Govt. treasury till date i.e. 13th of Sept' 95, even though he had made a mention of the same in the report sent to the Sessions Judge. He further deposed that the Sessions Judge had also made an inspection in May' 94 and not in Nov' 93. It was, therefore, not a case of total absence of any evidence on record. The evidence on record, even that portion thereof as has been noted in the judgment and order under appeal, which was also not in dispute, suggested that some part of the fine imposed was not paid by 24 Gopal Singh. The alleged mis-conduct was that the respondent went to the shop of Gopal Singh, seized the scooter for non-payment of fine and carried the scooter and Gopal Singh to police station. According to the reply to the charge sheet, the scooter was already seized by the traffic police. While there was evidence that the respondent accompanied by a policeman went to the shop of Gopal Singh, directed him to drive the scooter to police station, seizure of the scooter by the respondent and release thereof, there was no evidence of seizure of the scooter by the traffic police. In that background, if an opinion is formed that there is enough evidence on record that the respondent seized the scooter himself at the shop of Gopal Singh and made the same to be taken to the police station and kept the seized scooter and the owner thereof thereat, it cannot be said that such opinion is not supported by evidence or that a prudent person, on the basis of such opinion, 25 could not return a finding to the effect as was returned by the Hon'ble Inquiring Judge and accepted by the disciplinary authority. It is possible that a fact finding authority, upon reappreciating such evidence, could take a diagonally opposite view, for reasons even those recorded in the judgment and order under appeal, but a judicial review Court, not being a fact finding authority, could not substitute its views with that of the views expressed by the inquiring authority and the disciplinary authority.

I would, therefore, interfere with that part of the judgment and order under appeal, whereby and under the learned Single Judge while rendering the judgment and order under appeal, held that charge no. 8 has not been proved. In reply to the charge sheet, the respondent dealt with charge no. 11 in the manner as follows.

That in reply to charge 11, it is submitted that I never remained unauthorized absence, hence the 26 charge is denied. After getting a sanctioned leave for 15 days with effect from 1.2.94 with permission to leave the station from District and Sessions Judge, I applied for extension of leave upto 17.2.94 through an application submitted to the Registrar of the Honourable high court (before Mr. Chisti, Head asstt). And from 18.2.94 to 3.3.94 I have been attending and conducting the court at Leh. While the charge was unauthorized absence from February 18, 1994 to March 3, 1994; the defence was that there was no absence during the said period, for, the respondent attended and conducted court during the said period. In respect of the said charge, the learned Single Judge in the judgment and order under appeal specifically held as follows.

It is, however, not borne out from the record that the petitioner after availing earned leave w.e.f. 18th Jan' 94 to 17th Feb' 94, joined his duties on 18th Feb' 94. As a fact, therefore, the learned Judge found that the defence is not available. The learned Judge felt that since such absence preceded 27 leave granted, the absence should be treated as overstaying leave and cannot be attributed as unauthorized absence. The judgment and order under appeal does not make any endeavour to suggest why overstaying leave should not be treated as unauthorized absence. Furthermore, the learned Judge failed to take note of a very important fact that the defence of discharging official duty during the relevant period taken by a Judicial Officer was demolished. The learned Judge felt that the punishment of removal is not commensurate with overstaying leave with effect from February 18, 1994 to March 3, 1994. There cannot be any dispute that punishment should be proportionate to proved mis-conduct. If it appears that the proved misconduct does not justify punishment accorded; the matter may be remitted to the disciplinary authority, or for reasons to be recorded and in particular, when the matter has been delayed for a considerable time, the Court may substitute 28 the punishment, but because the punishment is not proportionate to the mis-conduct proved, the Court cannot strike down the punishment and close the matter, inasmuch as the moment it is held by Court that the punishment is disproportionate to the proved mis-conduct, it acknowledges that mis-conduct, stands proved and once mis-conduct stands proved, the delinquent must be punished therefor. It is true that mere absence from duty for a few days without permission may not justify a punishment as severe as that of removal, but when a Judicial Officer holds out in his defence that there was no absence from duty and such defence is demolished, in my view, it cannot be said that mis-conduct of such unauthorized absence, cannot be punished by way of an order of removal, inasmuch as, the said state of affair clearly depicts total apathy and casualness on the part of the respondent in the matter of obtaining permission to remain absent from duty.

Be that as it may, the cumulative effect of proven mis-conduct pertaining to charges no. 8 and 11, could be taken note of while awarding punishment. I do not think that punishment of removal from service, taking into account the cumulative effect thereof, can be said to be disproportionate to the proven mis-conduct.

Still then, there cannot be any dispute that the punishment of removal from service was certainly awarded by taking note of the cumulative effect of charges no. 1, 8 and 11. Accordingly, the question is whether the punishment of removal can be sustained? I have already held that charge no. 1 cannot be taken note of for awarding punishment but the same has been taken note of while awarding the punishment of removal.

To the disadvantage of the respondent, it is now well settled that if finding on a charge is interfereable by the Writ Court, but not the other charges, punishment cannot be interfered 30 unless the punishment is totally disproportionate to the charges not interfereable. In the instant case, for the reasons recorded above, I do not think that the Writ Court was competent to interfere with the order of punishment on the non-interfereable charges no. 8 and 11, which stand proved against the respondent.

I agree with Mr. D. C. Raina, learned Senior counsel appearing in the appeal preferred by Shri A. K. Shan that the learned Judge while rendering the judgment and order under appeal, proceeded on the basis that Shri A. K. Shan is still a respondent to the writ petition and, accordingly, was required to respond to the allegations made in the writ petition. It does not appear that the learned Judge was posted with the fact that the order treating Shri A. K. Shan, as respondent to the writ petition, had been set aside by a Division Bench of this Court. I also agree with Shri D. C. Raina that a person cannot 31 be condemned without being heard. In the result, I allow both the appeals, set aside the judgment and order under appeal and, at the same time, dismiss the writ petition. (Sunil Hali) (Barin Ghosh) Judge Chief Justice Jammu:

07.12.2009.

Tilak, Secy.

Per Sunil Hali,J.

The conduct of a judicial officer(respondent No.1 herein) of this court was the subject matter of an inquiry which resulted in his removal from service vide order No. 1343-LD(A) of 2000, dated 29th of Aug'2000. The order of removal was preceded by a departmental inquiry conducted by a Judge of this court in pursuance to a resolution passed in this regard by the Full Court.

The conclusion of the inquiry resulted in establishing the misconduct on the part of respondent No.1 in respect of charges 8 and 11 while other charges were held to be not proved. The disciplinary authority i.e., the High Court (here-in-after referred to as the authority) concurred with the recommendations of the Enquiry Officer in respect of charges 2 to 11 but disagreed with its findings with respect to charge No.1. The resultant effect was that on the recommendation made by the 32 Full Court, the State Government removed the respondent No.1 from service w.e.f., the date of passing of order dt. 29th of Aug'2000, referred to above.

The aforementioned order was challenged by respondent No.1 by way of writ petition, SWP No. 126/2001. A learned Single Judge of this court vide order impugned dated 2nd of June'09, allowed the writ petition and set aside the order of removal from service passed against the respondent No.1. While disposing of the writ petition, the learned Single Judge has also directed that the adverse comments recorded by it with regard to the conduct of the then District & Sessions Judge, Leh, Sh A.K. Shan, be placed on his personal file. It is under these circumstances, two sets of appeals-one by the High Court and the other by above mentioned officer, the then District & Sessions Judge, Leh, have been preferred against the order impugned passed by the learned Writ court.

The issues involved in these two appeals being inter-related, we propose to dispose of both these appeals by this common judgment. The facts in brief are that while functioning as Chief Judicial Magistrate, Leh, some complaints were received against respondent No.1, which impelled the authority on its administrative side to order a 33 preliminary inquiry into the matter to be conducted by the Vigilance Commissioner. On perusal of the inquiry report submitted to the High Court by the aforesaid officer, primafacie it was found that a detailed inquiry is required to be conducted against the respondent No.1. Consequently, a sitting Judge of the High Court Hon'ble Mr Justice V.K. Gupta, as His Lordship then was, came to be appointed as Enquiry Officer. A charge-sheet prepared consisting of 11 charges was served upon the delinquent officer. It seems that inquiry proceedings were started by the Enquiry Officer but in midway, His Lordship V.K. Gupta, J., came to be transferred from this Court. The matter was again placed before the Full Court and Hon'ble Mr Justice Bilal Nazki, as His Lordship then was, came to be appointed as the Enquiry Officer. After hearing the parties and appreciating the evidence on record, the Enquiry Officer recorded his finding on the charges levelled against the delinquent officer and as already stated above, the charges 8 and 11 were proved against the said officer whereas, in respect of other charges, the respondent No.1 was found not guilty.

Following issues arise for our consideration in this case:-

1/ That while applying the principle of 34 denial of reasonable opportunity and nonobservance of the rules of natural justice, whether the actual prejudice caused to respondent No.1 was required to be determined after going into the question as to whether the charges were seperable or not. 2/ Whether the punishment could be sustained on the basis of the separable charge having been proved by the authority on the recommendation of the Enquiry Officer alone. 3/ That while recording certain adverse comments against the appellant in LPA No.99/09, whether the reliance placed by the writ court on the report of the Enquiry Officer was uncalled for as the conduct of the officer was not the subject matter of probe in the said inquiry; and 4/ Whether the learned Single Judge while passing the order impugned could enter into an arena of appreciating and sifting of evidence recorded by the Enquiry Officer, which was not its domain while hearing the petition under Article 226 of the Constitution of India.

Formulations No.1 and 2:

As discussed here-in-supra, the authority found the respondent No.1 guilty of charges 1, 8 and 11. The finding on charge No.1 by the 35 Enquiry Officer was not accepted by the authority, which resulted in the removal of the said respondent from service. The learned Single Judge while passing the judgment impugned observed that the tentative finding of the authority regarding charge No.1 was not communicated to the respondent No.1 and the same would result in violation of natural justice as a result of which, the order of removal from from service was set aside.

It is important to note that in order to appreciate the above aspect of the matter, charge Nos.1, 8 and 11 framed against the respondent No.1, which were held to be proved by the authority and the Inquiry Officer are reproduced below:-

1.That in a challan covering Mini Bus with Registration Mark and No. JK01-6507, a fine of Rs. 2,500/- has been imposed and Receipt No. 051083 dated 2.11.1993 issued for the amount to the Driver. Whereas, the counter foil of the receipt in the receipt book reveals that only fine of Rs. 1300/- has been shown to have been imposed and remitted in Treasury. The amount of Rs. 1200/- has been either misappropriated or the amount has been received as illegal gratification; 8. That after convicting and punishing one Gopal Singh with a fine of Rs. 350/- on 7.6.1994, for driving the Scooter No. 3508 36 without RC, IC and DC, you assisted by your PSO, appeared at the shop of Gopal Singh seized the scooter for non payment of the fine and carried the scooter and Gopal Singh to the Police Station with instructions to concerned police officer to keep the shop keeper said Gopal Singh in Police Station till he comes back or rings them up. Your acs of visiting the shop of Gopal Singh to receive the fine, seized the scooter, arrest Gopal Singh and then to keep the Scooter and Gopal Singh at the Police Station, amounts to violation of provisions of Law with regard to recovery of fine and wrongful confinement, besides display of conduct unbecoming of a Judge. 11.That after availing leave for 15 days ending Ist Feb.1994, you failed to apply for extension of leave in time (from 2.2.1994 to 17.2.1994) and no leave whatsoever was applied for from 18.2.1994 to 3.3.1994 and again failed to apply for further leave from time and through proper channel. You left the station Leh without seeking permission from the competent authority and your un-authorised absence is in violation of leave rules and breach of Judicial discipline. Going through the contents of the above charges, it clearly reveals that Charge Nos.1, 8 and 11 are independent and not interrelated.

Charge No.1 relates to the misappropriation of Rs.1200/- by the 37 respondent No.1. With respect to charge No.8, as noticed above, the allegation against respondent No.1 is that after a punishment was imposed upon one Gopal Singh with a fine of Rs.350/- for driving the scooter without RC, IC and DC, the respondent No.1 along with his PSO went to the police station concerned and instructed the police officers to keep Gopal Singh in custody and also to seize the scooter and keep them under lock-up till he comes back or rings them up. Whereas, charge No.11 relates to his unauthorised absence from duty. A perusal of the above shows that all the three charges which were held to be proved against respondent No.1 were independent of each other. This being the position, it cannot be said that there was total denial of reasonable opportunity to respondent No.1. Non-observance of principles of natural justice and denial of reasonable opportunity vitiates the order only when some real prejudice is caused to the delinquent official. The said principle is applied taking into consideration the facts and circumstances of each case. The earlier pronouncements on this issue are that even a small violation of the said principles would be fatal. The principles of natural justice cannot be put in a straitjacket formula. It has separate facets. The principle underlying this concept is that the delinquent official must show that some prejudice has been caused to him by 38 non-observance of the rules of natural justice.

We are fortified in this view by a judgment of the Apex Court reported in (2006)8 SCC 776, P.D. Agarwal v. State Bank of India and others. What has been observed by the Apex Court in the above case be noticed as under:-

The principles of natural justice cannot be put in a straitjacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change..................... ........................................... The contention of the appellant based on earlier case law that non observance of principle of natural justice itself causes prejudice cannot be said to be applicable in the instant case. The principles of natural justice, as stated earlier, have undergone a sea change. In view of later decisions, the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from tis earlier concept that even a small violation shall render the order a nullity. The principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle. The Court applies the principles of natural justice having regard to the fact 39 situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. In the present case, as indicated above, the charge Nos.1, 8 and 11 were separable from each other and, as such, the authority was well within its rights to hold the respondent No.1 guilty of each one of the charges independently and pass the order of punishment, which could be sustained on any one of the charges'. There was no necessity to hold him guilty of all the charges once it is found on fact that charges are separable and punishment could be imposed on proving of anyone of the said charges'. We are accordingly, not inclined to agree with the findings of the learned Single Judge on this count.

After having said so, could the impugned order still be quashed for non observance of the rules governing the service of respondent No.1.

Action against respondent No.1 was taken in terms of provisions of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 (here-in-after called the Rules), and penalty of removal from service, which is a major penalty, was imposed in terms of Rule 30(vii) of the said Rules.

The said rule reads as under:-

30.Punishment.-

(vii)removal from the service of the State which does not disqualify from future employment; The procedure for holding inquiry is contained in Rule 33 of the Rules and the same provides a detailed inquiry which includes following steps to be taken:

a/ The grounds on which the proposed action is likely to be taken, are to be reduced in the form of a definite charge or charges which shall be communicated to the delinquent official along with a statement of the allegations on which each charge is based; b/ Submission of written statement by the delinquent official in defence and to state whether he desires to be heard in person; c/ Holding of inquiry in the shape of oral evidence and right to cross-examine the witnesses;

d/ The proceedings to contain sufficient record of evidence and the statement of the findings and the grounds thereof. After the conclusion of the inquiry,if the authority competent is of the view that a 41 penalty is required to be imposed upon the delinquent official, then, the said authority shall issue a show cause notice to the said official if the penalty proposed is dismissal, removal from service or reduction in rank. This is to be done in terms of Rule 34 of the Rules. The said notice of the proposed major penalty is also to be accompanied with a copy of the proceedings prepared under Rule 33, excluding the recommendation, if any, in regard to the punishment, made by the Enquiry Officer.

The import of the aforementioned Rules envisages the procedure which is to be followed by the authority concerned while holding an inquiry in respect of the allegations on the basis of which it intends to impose a major penalty against a delinquent official.

It is settled proposition of law that a public servant is entitled to protection under Article 311 of the Constitution of India. He must get proper opportunity to defend himself and must have a clear notice of charges which he is called upon to meet before the departmental inquiry commences. After he gets the notice and is given an opportunity to offer his explanation, the inquiry must be conducted in accordance with the rules governing the field and in consistent with the requirements of principles of rules of natural 42 justice. At the end of the inquiry, the Enquiry Officer appreciates the evidence, records his conclusion and submits his report to the authority concerned. This is the first stage of inquiry.

On receipt of the inquiry report along with the recommendations, if the Enquiry Officer finds that the charges are not proved and same is agreed by the authority, nothing more is required to be done. If the report makes a finding in favour of the public servant on all the charges or finds him guilty of some charges, it is the authority who is to decide provisionally as to what punishment should be imposed on the public servant and it accordingly proceeds to issue a second notice in that behalf. In cases, where the Enquiry Officer returns findings some of which are in favour of the public servant and some against him, the authority is entitled to consider the whole matter and if it holds that some or all the charges framed against the public servant are, in its opinion, prima facie established against him, then the authority has to decide as to what punishment is to be imposed and serve him a notice accordingly. It would, thus, be seen that the object of second notice is to enable the public servant to satisfy the authority on both the counts, one that he is innocent of the charges framed against him and the other that even if the 43 charges are held to be proved against him, the punishment proposed is unduly severe. At the second stage, the opportunity which is intended to be given to the public servant is to show cause not only against the proposed punishment but also against the finding recorded against him by the Enquiry Officer. However, the authority, in any case, is not bound by the recommendations of the Enquiry Officer because if the said principle is held to be applicable in such cases, then, the purpose of issuance of second notice would be rendered fruit-less.

Article 311 of the Constitution of India is exception to the principle of doctrine of pleasure and provides safeguards to a member of civil service against dismissal or removal from service without giving him a reasonable opportunity of being heard in respect of the charges levelled against him. After the 42 amendment of the Constitution, the provision of giving a second notice has been done away with, however, the said amendment does not apply to the State of Jammu and Kashmir and the provision for issuance of a second show cause notice as provided under Article 126 of the State Constitution has been retained. Providing of a reasonable opportunity to a delinquent official is the mandate of the Constitution. Reasonable opportunity would mean an opportunity which is to be given to 44 the delinquent official to explain his conduct regarding the allegations levelled against him and also includes the manner in which the proceedings have to be conducted. The same may be provided by the rules governing the service of the delinquent official or in case, no such rules are in existence, then, by following the principles of rules of natural justice.

Applying the aforementioned principles in the present case, it be seen that respondent No.1 was served with a charge-sheet and after a detailed inquiry as envisaged under the rules, recommendations were made by the Enquiry Officer to the extent noticed above. The authority agreeing with the recommendations of the Enquiry Officer so far as charges 2 to 11 are concerned and its refusal in agreeing with the recommendations in respect of charge No.1, served a show cause notice to the respondent No.1 against the proposed punishment of his removal from service. The said show cause notice was required to be served upon the officer in consonance with the provisions of Rule 34 of the Rules, which required that if the penalty proposed is dismissal or removal from service or reduction in rank, the second show cause notice was required to be issued to the respondent No.1 accompanied with a copy of the proceedings prepared under Rule 33 excluding the recommendations, if any, in regard to the 45 punishment, made by the Enquiry Officer. It is pertinent to note that the Enquiry Officer has also proposed punishment in his report. Admittedly, the notice in question was not accompanied with the copy of proceedings prepared under Rule 33 of the Rules. The proceedings as defined in Rule 33 and as noticed above, was to contain sufficient record of the evidence, statement of the findings and the grounds thereof. In the present case, what has been supplied to respondent No.1 is only a copy of second show cause notice unaccompanied by the copy of the proceedings mentioned above. In this respect, reference can be made to the stand taken by the appellant-High Court before the learned writ court. What has been stated in ground (ii) of the counter affidavit in reply to the assertion of the respondent No.1 that he was not afforded proper opportunity of being heard, may be noticed as under:-

(ii) Averments made in ground (ii) are denied. The Hon'ble High Court has not committed any error of law or fact while considering the report of the enquiry officer.

It may further be submitted here that the report was considered by the Hon'ble Court and the petitioner was served with a 'Show Cause Notice' wherein it was specifically mentioned that charge No.1 also stand proved on evidence against the petitioner apart from charge No.8 46 & 11. The petitioner replied to the aforesaid Show Cause Notice and gave a detailed objection it and, as such, full opportunity of being heard was afforded to the petitioner before recommending the case of the petitioner to the Respondent No.1 for his removal from the service. It is denied that no opportunity of being heard was afforded to the petitioner as alleged. The proposed penalty of removal from service and consequential removal is not bad as alleged. A perusal of the above stand taken by the appellant-High Court clearly reveals that the show cause notice issued to the respondent No.1 by the authority was not accompanied with the copy of proceedings prepared under Rule 33 of the Rules, which was the requirement of law as also the mandate of Rule 34 of the Rules. A perusal of the record further reveals that while disagreeing with the view expressed by the Enquiry Officer with respect to charge No.1, the proposed conclusion arrived at by the said authority and the basis for the same was also not communicated to the respondent No.1. What emerges from the aforementioned discussion is the fact that neither copy of proceedings prepared under Rule 33 of the Rules nor the tentative conclusions of the authority in differing with the view of the Enquiry Officer in respect to charge No.1, 47 were served on respondent No.1.

The question that arises now is as to what is the affect of said action of the authority in the present case.

Non supply of the copy of the proceedings prepared under Rule 33 of the Rules, which includes the inquiry report, record of evidence and the statement of the findings and grounds thereof constitutes violation of Rule 33 and 34 of the Rules as also the principles of natural justice. We say so because there could be glaring errors and omissions in the report or it may have been based on no evidence or made in disregard to or by overlooking the evidence. If the proceedings are not made available to the delinquent official, this crucial material which is taken into consideration by the authority never comes to his notice and under these circumstances, the delinquent official gets no opportunity to point out such errors and omissions to disabuse the mind of the authority concerned before he is held guilty as has been in the present case. Issuance of notice to show cause against the penalty proposed necessarily required furnishing of copy of proceedings prepared under Rule 33 of the Rules since the right to show cause against the penalty also implies the right to represent against the finding on the charges.

From the above, it can safely be said that the right to receive the copy of report of the Enquiry Officer plus the record of the evidence which constitutes the proceedings before the Enquiry Officer, is an essential part of reasonable opportunity and the principles of natural justice.

The non supply of copy of proceedings along with the show cause notice has prejudiced the rights of the respondent No.1. Apart from what has been said above, once the rules governing the subject itself provide for making available a copy of the proceedings along with the show cause notice by the authority to the delinquent official, non compliance of the same, would be a violation of the said Rules and the action of appellant authority in this regard would tantamount to denying a reasonable opportunity and also violative of the principles of natural justice.

The Apex Court in the case reported as AIR 1994 SC 1074, Managing Director, ECIL, Hyderbad v. B.Karunakar, has held as under:-

......The broad test of reasonable opportunity is whether in the given case the show cause notice issued to the delinquent servant contained or was accompanied by so much information as was necessary to enable 49 him to clear himself of the guilt, if possible, even at that stage or in the alternative to show that the penalty proposed was much too harsh and disproportionate to the nature of the charge established against him......................... .............................................. ..

In Union of India v. E.Bashyan (1988) 3 SCR 209: (AIR 1988 SC 1000), the question squarely arose before a Bench of two learned Judges of this Court as to whether the failure to supply a copy of the report of the Inquiry Officer to the delinquent employee before the disciplinary authority makes up its mind and records the finding of guilt would constitute violation of Art.311(2) of the Constitution and also of the principles of natural justice. It was opined that in the event of failure to furnish the report of the Inquiry Officer, the delinquent employee is deprived of crucial, and critical material which is taken into account by the real authority which holds him guilty viz., the disciplinary authority. According t the Court, it is the real authority because the Inquiry Officer does no more than act as a delegate and furnishes the relevant material including is own assessment regarding the guilt, to assist the disciplinary authority who alone records the effective finding. The non supply of the copy of report wold, therefore, constitute violation of the principles of natural justice 50 and accordingly will tantamount to denial of reasonable opportunity within the meaning of Art.311(2) of the Constitution... As noticed above, the right to receive second show cause notice was taken away after 42nd Amendment in the Constitution, but the said Amendment has not been made applicable to the State of Jammu and Kashmir and the said right continues to be a part of Scheme under the State Constitution.

In view of the above, we are of the opinion that the order of removal from service passed against the respondent No.1 is required to be set aside due to the failure on the part of the authority to furnish a copy of inquiry report, the record of evidence, statement of the findings and the grounds thereof to the respondent No.1, which has prejudiced his right of making an effective representation. Coming to the other formulations No.3 and 4, the same can be analysed together. The learned Single Judge while dealing with this issue has held that the finding of the inquiry officer on charges 8 and 11 has not been appreciated in its right perspective and the conclusions have been wrongly drawn. The observations made in this regard by the learned Single Judge are enumerated below:-

a/ While dealing with charge No.8, it is stated that the conclusions of the inquiry officer in over-looking the contradictions made by the witnesses cannot be made the basis for holding the respondent No.1 guilty. The evidence has not been properly appreciated by the inquiry officer while dealing with this charge. Mr A.K. Shan, the then District & Sessions Judge, Leh, who was the immediate controlling officer of the respondent No.1, has been found instrumental in instigating the witnesses namely Surinder Singh and Gopal Singh to make false statement against the said respondent. It has been held that on the basis of the said false statements made by the aforementioned witnesses, the inquiry officer has wrongly concluded that charge No.8 stands proved against respondent No.1. The question which arises for consideration is as to whether the course adopted by the learned Single Judge in reappreciating the evidence was proper or not.

It is settled proposition of law that the court while exercising power under Article 226 of the Constitution is not to interfere with the findings of fact arrived at in a departmental proceeding except in case of malafide or in case the authority concerned has held the proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode 52 of such inquiry or if the conclusion arrived at by the authority is wholly arbitrary or is vitiated by considerations extraneous to the evidence and merits of the case. The court cannot re-appreciate the evidence in proceedings under Article 226 and the departmental proceedings so conducted by the authority concerned have to be sustained. In AIR 1997 SC 1908, Rae Bareli Kshetreiya Gramin Bank v. Bhola Nath Singh and others, the Apex Court while dealing with the above proposition has held as under:- The judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Art.226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a fact recorded by the enquiry officer and accepted by disciplinary authority. Under these circumstances, the question of examining the evidence as was done by the High Court, as a first appellate court, is wholly illegal and cannot be sustained. 53 Similar view has been taken in the case reported as AIR 2000 SC 22, The High Court of Judicature at Bombay v. Shasikant S.Patil and another. The relevant observations in this regard made by the Apex Court are as under:- .......Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 o the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority, (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution. 54 Applying the law laid down by the Apex Court in the aforementioned cases, in the present case, it is clearly revealed from the judgment impugned that the learned Single Judge has entered into an arena of appreciating the evidence recorded by the inquiry officer which was none of its function in proceeding under Article 226.

The direction of the learned Single Judge after recording its findings to place the same on the personal file of Mr A.K. Shan, the then District & Sessions Judge, Leh, has to be appreciated in the context of what has been stated here-in-above.

A perusal of the judgment of the learned Single Judge reveals that after discussing the merit of the evidence recorded by the inquiry officer, certain conclusions have been drawn relating to the conduct of aforementioned officer. The findings so recorded relate to the role of the said officer while functioning as controlling officer of respondent No.1. It is not in dispute that the conduct of the then District & Sessions Judge, Leh, was also the subject matter of a separate inquiry which was initiated against him on the basis of recommendation made by the inquiry officer who was probing the allegations against respondent No.1. In this regard, it would be appropriate to notice the observations made by the inquiry 55 officer against Mr A.K. Shan. These read as under:-

Before parting with this enquiry, I would also suggest that an enquiry be initiated against Mr Shan, who was the District & Sessions Judge, Leh, at the relevant time. He has written a letter to Mr Atri, when Mr Atri was at Jammu and asked him to take cognizance in a complaint at Jammu and he has also asked him to show that the complaint is entertained on a date when Mr. Atri was at Leh. If this is the conduct of a senior Judicial Officer, who is the Principal Judge of the District, then God alone can save tis institution.

Since Mr Shan has admitted having written leter to Shri Atri, I think he is worse than Mr Atri, therefore, it is recommended to the Full Court to order an enquiry into the conduct of Mr.Shan. The letter also shows that Shri Shan was helping Shri Atri in remaining absent from his duties, although as a District Judge, it was his duty to ensure that C.J.M., attends his duties. It was on the basis of the above recommendation that an inquiry as indicated was initiated against Mr A.K. Shan. He was served with a charge-sheet in which the allegation levelled against him was that he had written a letter to Sh V.K. Atri, then Chief Judicial Magistrate, Leh, on 14th of 56 Jan'94, to entertain a complaint in a back date.

A learned Judge of this court was appointed as Inquiry Officer who submitted his report to the High Court. On receipt of the said report, the then Hon'ble Chief Justice was pleased to constitute a Committee of four Hon'ble Judges to consider the said report and take a decision in the matter. The said Committee after considering the report of the inquiry officer on 4th of June'01, came to the conclusion that a show cause notice be served upon Sh AK Shan, as to why he be not removed/dismissed from service. It was in pursuance to the said decision taken by the Committee, a show cause notice dt. 27th of June'01, was served upon the aforementioned officer, who submitted his reply to the said notice on 23rd of July'01. When the matter was re-considered by the Committee, it was proposed that the reply of the officer having not been found satisfactory, he be awarded a penalty of with-holding of his promotion for a period of next five years.

The recommendations of the Committee to the above extent were accepted by the Full Court and accordingly vide oder dt. 15th of Jan'02, Mr A.K. Shan, the then District & Sessions Judge, Leh, was awarded the penalty as indicated above.

What transpires from the aforementioned facts is that the alleged misconduct attributed to Mr AK Shan, was in respect of the charge that he had written a letter to the respondent No.1 for entertaining a complaint in a back date. The observations made by the learned Single Judge on other issues which cropped up during the course of inquiry against respondent No.1 was, thus, not the subject matter of charge against Mr Shan, in the inquiry held against him. In case, the learned Single Judge was of the opinion that the matter has not been rightly appreciated, then, the appropriate direction should have been for initiating a fresh inquiry against the delinquent official on the said charges. This, however, has not been done. We, however, do not enter into this arena as to whether the allegations against the aforesaid officer, as are indicated in the order of learned Single Judge, are correct or otherwise because that is not the controversy involved in the present case. What we are concerned about is as to whether the observations made by the learned Single Judge regarding the conduct of Mr A.K. Shan, the then District & Sessions Judge, Leh, could have been made in proceedings where he had no occasion to defend himself.

It may be noted that during the pendency of the writ petition, the learned Single Judge 58 vide order dt. 17th of Dec'07, directed that Mr A.K. Shan, be impleaded as party respondent to reply the charges of malafide levelled against him by the respondent No.1 (writ petitioner). An appeal was filed against the aforementioned order. A Division Bench of this Court in LPA No. 176/07, set aside the aforementioned order of impleadment of Mr Shan as respondent in the writ petition, vide its order dt. 16th of Dec'08, and directed that the writ court shall proceed with the writ petition in accordance with the law. What emerges from the above facts is that the observations of the learned Single Judge relating to the conduct of Mr A.K. Shan,as revealed during the course of inquiry held against respondent No.1 and the direction regarding placement of the same on his personal file cannot be sustained. The observations emanate from the report of the inquiry officer who was probing the conduct of respondent No.1 alone. Any reliance placed on the inquiry report by the learned Single Judge against Mr Shan, whose conduct was not the subject matter of probe in the said inquiry and consequently the conclusions arrived at in this regard are uncalled for. The conduct of the said officer in respect of the facts which emerged during the course of inquiry, could be subject matter of a separate inquiry, which admittedly has not been held except for the charge indicated here-in-above.

We, therefore, hold that the observations made by the learned Single Judge in the order impugned, so far as it relate to the conduct of Mr A.K. Shan, the then District & Sessions Judge, Leh, as indicated above, are uncalled for and cannot be sustained.

Lastly, it was contended by the counsel for the respondent No.1 that the punishment of removal from service imposed upon the said respondent is too harsh a punishment and disproportionate to the misconduct proved against him. It was contended that Mr A.K. Shan, whose conduct as a controlling officer of the respondent No.1 was also the subject matter of probe for having written a letter to the said respondent for entertaining a complaint in a back date, was also recommended a punishment of removal from service, which was re-considered by the authority concerned and he was awarded punishment of with-holding of his promotion for a period of five years. It is stated that keeping in view the above said fact, the authority concerned should have adopted similar principle while considering the case of the respondent No.1.

It is settled law that a court sitting in appeal against a punishment imposed by the authority is not to substitute its own conclusion on penalty unless the punishment so imposed shocks the conscience of the court.

The judicial review in such matters is limited to the deficiency in decision making process and not the decision and the appropriate course which is to be adopted in such cases where the punishment appears to be shockingly disproportionate, is to direct the authority concerned to reconsider the penalty imposed. We, accordingly, do not intend to pass any direction on this count as the matter for imposition of punishment has to be reconsidered by the authority after the conclusion of the inquiry against respondent No.1, who will be well within his rights to raise the plea regarding the penalty being disproportionate to the alleged misconduct, which plea if raised, shall be considered by the said authority.

For the reasons stated here-in-above, these appeals shall stand disposed of in the following manner:-

1/ That the judgment impugned so far as it directs setting aside of the order of removal from service passed against respondent No.1, is upheld with a direction to the authority that the inquiry proceedings shall continue afresh from the stage of issuance of a fresh show cause notice by the said authority; 2/ That the respondent No.1 shall be provided a copy of the proceedings which shall 61 include the inquiry report, record of evidence, statement of the findings and the grounds thereof along with the reasons of the authority for differing with the recommendation of inquiry officer so far as charge No.1 is concerned;

3/ That the respondent No.1 shall stand reinstated only for the purposes of inquiry as stated above, and his status as a suspended employee shall continue till the inquiry is completed and appropriate orders are passed by the authority concerned;

4/ That the observations of the learned Single Judge regarding the conduct of Sh A.K. Shan, the then District & Sessions Judge, Leh, and for placing the same on his personal file are set aside;

5/ That the final order to be passed by respondent-State shall be subject to the outcome of the recommendation of the authority after taking into consideration the reply of respondent No.1 to the second show cause notice which shall be issued to him along with the material referred to above. Disposed of accordingly.

(Sunil Hali) (Barin Ghosh) Judge Chief Justice Jammu Dt.07.12.2009.

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