Madhya Pradesh High Court
Iqbal Khan Ghauri vs The State Of Madhya Pradesh on 12 January, 2012
Author: Alok Aradhe
Bench: Alok Aradhe
1
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
W.P. No. 16356/2005 (s)
IQBAL KHAN GHAURI
VS.
THE STATE OF M.P. & ANOTHER
Present: Hon'ble Shri Justice Rajendra Menon &
Hon'ble Shri Justice Alok Aradhe.
Shri R. P. Agrawal, learned Senior counsel with Shri
Sanjay Agrawal, for the petitioner.
Shri Rajesh Tiwari, learned Govt. Adv. for the
respondent-State.
Shri P. R. Bhave, learned Senior Counsel with Shri
Bhanu Pratap Yadav, for the respondent No.2.
As per : Hon'ble Justice Shri Rajendra Menon
ORDER
( ...12012 ) Petitioner who was holding the post of Civil Judge, Class I, Sabalgarh, District Morena has filed this writ petition challenging the order Annexure P/1 dated 20th April, 2005 passed by respondent No.1 removing him from service on 2 the basis of finding recorded against him in a departmental enquiry. The impugned action is taken on the basis of the recommendations made by the High Court in a Full Court resolution passed on 16.4.2005. Challenge is also made to the order Annexure P/3 dated 5.11.2005 by which appeal filed by the petitioner is dismissed and further prayer is that the enquiry report Annexure P/2 dated 5.2.2004 holding charge No.3 and 4 as proved, be quashed.
2. Petitioner was appointed as a Civil Judge Class II on 30th June, 1990. In October 1997 he was promoted as Civil Judge Class I and in the said capacity was posted in Chanderi, District Guna in the year 2002. However, when the petitioner was working as Civil Judge Class I, Sabalgarh, District Morena. A charge sheet Annexure P/4 dated 2.5.2003 was issued to the petitioner. In the aforesaid charge sheet 4 allegations were leveled against the petitioner. The allegations levelled against the petitioner in this charge sheet pertains to certain incidence that took place when the petitioner was posted at Chanderi. Petitioner submitted his reply to the said charge sheet vide Annexure P/ 5 along with 12 documents. Petitioner in his reply denied the allegations leveled against him in the charge sheet and sought for his exoneration. However, the competent authority finding the explanation of the petitioner to be unsatisfactory ordered for a regular departmental enquiry and the District Judge (Vigilance), Gwalior was directed to conduct a enquiry and submit his report. On the basis of 3 enquiry conducted, report Annexure P/2 was submitted on 5.2.2004 by the Enquiry Officer. Out of the 4 charges leveled against the petitioner, the Enquiry Officer found that Charge No.1 and 2 are not proved but charge No.3 and 4 were held to be proved. Accordingly, based on the report submitted by the Enquiry Officer a notice Annexure P/6 dated 15.10.2004 was forwarded to the petitioner by the Registrar (Vigilance) of the High Court. Petitioner submitted his reply to the same vide Annexure P/7 and his defense vide Annexure P/8 and P/9 but when the impugned action was taken and when the appeal was rejected vide Annexure P/10 petitioner has filed this writ petition.
3. During the course of hearing of this writ petition, Shri R. P. Agrawal, learned Senior Counsel did not challenge the enquiry conducted against the petitioner on the ground of any procedural irregularities or on the ground that proper opportunity of defense was not granted to the petitioner. His main ground of challenge was to the effect that the findings of the Enquiry Officer are perverse, it is contrary to the evidence and material available on record and further that even charge No.3 and 4 are not established in the enquiry. It was also emphasized by him that the charges are false and the petitioner is not guilty of the allegations leveled. It is stated that the petitioner had discharged his judicial duties and in the discharge of the same when the administration of justice was tried to be interfered with, he had to take the impugned action as is indicated in charge No.3 to the charge sheet.
44. At this stage it would be appropriate to take note of the charges leveled against the petitioner and the allegations that were found to be proved in the departmental enquiry. The charge sheet issued to the petitioner is dated 2.5.2003 and is Annexure P/4. According to the statement of articles of charges framed against the petitioner vide Charge No.1 it was alleged that petitioner was already in occupation of official bungalow while posted at Chanderi but he obtained illegal possession of another newly constructed bungalow for official use of the Judicial Officers without intimating the District Judge and paid rent only for one house, thereby, causing loss to the public exchequer. In the departmental enquiry this charge is found to be 'not proved'. It is found that the petitioner had informed the District Judge the position about the bad condition of his house and it was with the permission of the District Judge that he had kept some articles in the newly constructed house that also only in one room. The allegation was found to be 'not established'.
5. The second allegation vide Article No.2 was to the effect that in the newly constructed Government bungalow petitioner unauthorizedly obtained water connection by engaging a private plumber and unauthorizedly obtained 62 tankers of water from the Municipal Council. This allegation was also not found proved and it was held that on this count the petitioner had not misused the official position.
56. As far as Charge No.3 and 4 are concerned, the same reads as under :-
"3. That on stoppage of water supply by CMO of your residence, you initiated contempt proceedings against him which were not only vindictive in nature, but were also illegal and thereby polluted the sanctity of your position as a Judge and committed an act which was unbecoming of a Judge.
4. That the Advocates at Chanderi observed strike from 6.9.2002 with the objective that the CMO, Chanderi, who had stopped supply of water through water tanker at your residence, be transferred from Chanderi. You did not inform about the strike to the District Judge and neither did you take any measures on your own to put an end to the strike and thereby overtly added and abatted the Advocates in observing the strike."
Even though both these charges are found to be proved, with regard to Charge No.3, it is a case of the petitioner that while he was posted as Civil Judge and a Judicial Magistrate Class I in Chanderi, one Mukesh Jain filed a criminal complaint in his Court against the Chief Municipal Officer of Municipal Corporation, Chanderi one Shri Ashok Kumar Sharma and another official of the Municipal Corporation to the effect that both these officers have committed certain offences against 6 the complainant. The petitioner registered the complaint and thereafter forwarded it to the police authorities for investigation. After investigation the report was received from the police authorities indicating that a prima facie case against the accused persons for having committed offences under Section 294 read with Section 354 of IPC is made out and on the basis of the police report which was submitted on 20.8.2002 by the police authorities petitioner registered the case against Shri Sharma the CMO and his co-employee Shri Jalil-ul-Rehman. The complaint was registered on 20.8.2002 and a summon was issued to both these persons for their appearance on 29.8.2002. Both these persons appeared and they were granted bail. However, with effect from 2 p.m. on 29.8.2002 water connection and supply of water to the petitioner's house was stopped and it was only restored on 1.9.2002. After the water connection was restored on 1.9.2002, petitioner issued a show cause notice to the CMO asking him to show cause as to why contempt proceedings be not initiated against him as he has stopped water supply arbitrarily only to put pressure on the petitioner to somehow discharge him in the criminal case. The show cause notice issued is available in the paper book and is dated 2.9.2002. It was the case of the petitioner that under bonafide belief that the act of the CMO in stopping water supply was only a method to blackmail the petitioner and to put pressure on him to discharge the C.M.O from the Criminal Case, he took the action. Accordingly it was the 7 defense of the petitioner that he had only issued show cause notice for initiating action for contempt and when the reply was found unsatisfactory, he took steps for referring the matter to the High Court for further proceedings. It is argued by Shri R. P. Agrawal, learned Senior Counsel for the petitioner that without considering these defense of the petitioner and even without taking note of the fact that petitioner had initiated contempt proceedings due to the circumstances indicated by him, the Enquiry Officer and the disciplinary authority took action with regard to charge No.3 and held the same to be 'proved' only on the ground that petitioner had initiated contempt proceedings against the CMO because water supply to his residence was stopped. This was held to be misuse of judicial position of the petitioner. It was emphasized that while doing so the bonafide of the petitioner in taking action on account of hindering the judicial process in a case pending before him, was not at all adverted to. Placing reliance on the following judgments : Ishwar Chand Jain Vs. High Court of Punjab and Haryana and another - AIR 1988 SC 1395, Union of India & Others Vs. K. K. Dhawan - AIR 1993 SC 1478, Zunjarrao Bhikaji Nagarkar Vs. Union of India & Others - AIR 1999 SC 2881, P. C. Joshi Vs. State of U.P. & Others - AIR 2001 SC 2788, Shri R. P. Agrawal, learned Senior Counsel argued that for the aforesaid act no disciplinary action could be taken against the petitioner and petitioner cannot be punished as he had taken steps which according 8 to the petitioner was bonafide and was in furtherance of his judicial duty to protect the prestige of the judicial institute when a accused was trying to create hindrance in a judicial proceeding. Emphasizing that if the principles laid down in these cases are taken note of, the allegations leveled against the petitioner with regard to initiating contempt proceedings cannot be termed as misconduct for which action could be taken, Shri R. P. Agrawal seeks interference into the matter.
7. As far as 2nd allegation with regard to instigate the advocates to go on strike is concerned, Shri R. P. Agrawal, learned Senior Counsel submits that on perusal of evidence that came on record and statements of Members of the Bar Association who deposed in the enquiry are taken note of, it is clear that petitioner has no role to play in the strike initiated by the Members of the Bar Association. Taking us through the findings recorded by the Enquiry Officer in this regard Shri R. P. Agrawal, learned Senior Counsel argued that the Enquiry Officer has recorded a finding that there is no evidence or material available in the enquiry to show that petitioner in any way instigated or compelled the office bearers of the Bar Association to go on strike. An assumption is drawn in this regard by the Enquiry Officer only because the petitioner adjourned the cases and he did not inform the District Judge about the strike. However, it is emphasized by Shri R. P. Agrawal, learned Senior Counsel that on this count the explanation of the petitioner was not taken note of and the entire action is taken 9 in a arbitrary and illegal manner. It is submitted by Shri R. P. Agrawal that the Advocates went on strike from 6.9.2002 to 13.9.2002. Advocates had given a notice not only to the Collector and the District Administration but also to the District and Sessions Judge. During this period 7th, 8th and 10th of September were public holidays and therefore, strike had no effect on the working of the Court. On 11.9.2002 there was an election to the State Bar Council and on 6th and 7th the District Judge (Vigilance) had come for inspection in the Court and therefore, the petitioner was busy in the inspection on these days. It is stated that only on the basis of the petitioner's having adjourned the cases and on the ground that petitioner did not inform the District Judge, a presumption is drawn that petitioner has abetted the strike which according to the learned counsel for the petitioner is not correct. It was emphasized that merely on the basis of presumption and assumption the action could not be taken and when a Judicial Officer is punished with the extreme punishment of removal from service, the allegations are required to be proved beyond doubt and on the basis of assumption and presumption action the punishment was not warranted. Accordingly taking us through the findings of the Enquiry Officer and the defense of the petitioner with regard to charge No.3 and 4, Shri R. P. Agrawal, learned Senior Counsel argued that if the principles with regard to taking action against the Judicial Officer as canvassed by him on the basis of judgments referred to herein above and the 10 totality of facts and circumstances are taken note of, it would be clear that the action against the petitioner is wholly unsustainable, it is an arbitrary and unreasonable action which cannot be sustained. Accordingly, he prays for interference into the matter. In the alternate it is also argued that the punishment imposed on the petitioner is too harsh and disproportionate and therefore, the same should be interfered with.
8. Shri P. R. Bhave, learned Senior Counsel representing respondent No.2 argued that the findings recorded by the Enquiry Officer is proper, the petitioner is guilty of the charges leveled against him and a Judicial Officer who for his personal benifit and to ventilate his personal grievance has misused the judicial position and initiated contempt action against a Government official without any justification, the same amounts to grave misconduct and the action of the respondents is proper. It was emphasized by Shri Bhave that it was not at all necessary for the petitioner to initiate contempt proceedings merely because water supply was stopped. He could have informed the District Judge or the High Court who would have dealt with the matter. Initiating contempt action on such grounds was unbecoming of a Judicial Officer and therefore, it was emphasized by him that the action taken is to be upheld else Judicial Officers like the petitioner would indulge in misuse of their position and harass and victimize innocent person. As far as charge No.4 is concerned, Shri Bhave, 11 learned Senior Counsel emphasized that the petitioner is responsible for the strike by the Members of the Bar Association and the silence and the act of the petitioner in not even informing the District Judge when the strike was in progress clearly indicates that he was a party to the strike and as lawyers were agitating for a personal cause of the petitioner, the petitioner was hand in glow with the Members of the Bar Association and therefore, action taken is proper and the same does not want any interference. Accordingly, Shri Bhave argues that in the facts and circumstances of the case, action taken being just and proper in accordance to law, no interference be made.
9. Having heard learned counsel for the parties and on a perusal of the record, it is seen that the petitioner is a Judicial Officer and after his appointment on the post of Civil Judge Class II w.e.f. 30.6.1990 till the impugned action was taken against the petitioner there is nothing adverse against him. Nothing is available on record to indicate that during the period between 30.6.1990 till taking of the impugned action on 20.4.2005 any punishment or adverse action was taken against the petitioner with regard to any act of commission or omission done by him in discharge of his judicial function. As already indicated herein above in the charge sheet issued to the petitioner 4 imputations were made against him. As far as imputation No.1 and 2 are concerned, petitioner has been completely exonerated by the Enquiry Officer. The impugned 12 action is taken only with regard to Charge No.3 and 4 which is found to be 'proved'.
10. During the course of hearing Shri R. P. Agrawal, learned Senior Counsel emphasized that charge No.3 has not been correctly framed. It was submitted by him that the charge is based on the assumption that only because water supply to petitioner's residence was stopped, he initiated the contempt action but while doing so it was emphasized by him that the defense of the petitioner and his explanation with regard to action being initiated due to pendency of the criminal case and the accused taking the action to put pressure on the petitioner to close the criminal case was not taken note of. There is much force in the aforesaid submission of learned Senior Counsel. If the charge as it is framed herein above is taken note of and if the allegations leveled against the petitioner in the charge sheet in this regard is analyzed, it would be seen that the allegation is to the effect that the petitioner initiated action for contempt against the CMO of the Municipal Council only because water supply to the petitioner's residence was stopped. This is the article of allegation against the petitioner vide Article No.3, in the statement of imputation as contained for this article also this is the allegation leveled against the petitioner. In the preliminary enquiry conducted so also in the departmental enquiry and even in the reply to the charge sheet it was the specific case of the petitioner that a criminal case was filed against the Chief Municipal Officer and his co-
13employee by one Shri Mukesh Kumar Jain, resident of Chanderi on 8.6.2002. The complaint was sent by the petitioner for enquiry by the police authorities, the police authorities submitted a report on 20th August 2002 and on the basis of the report of police authorities, the police authorities submitted a report on 20.8.2002 and on the basis of the report of police authorities, Criminal Case No.324/2002 was registered for offences under Section 294 and 354 I.P.C against both the C.M.O Shri Ashok Kumar Sharma and his co-employee Shri Jalil-Ur-Rehman. On 20.8.2002 itself summons were issued to them and they were directed to appear on 29.8.2002. Both the accused persons appeared in on 29.8.2002 and without any objection or hindrance the petitioner immediately granted bail to them. After being released on bail and when this order was passed in the first half, it is alleged that around 2 p.m. on the same day i.e. 29.8.2002 water supply to petitioner's house was stopped. Thereafter it was restored on 1.9.2002 and the petitioner initiated contempt action on 3.9.2002. This explanation and defense of the petitioner which is of material importance with regard to this charge is neither forming the basis or the part of the charge sheet nor it is adverted to and considered by the Enquiry Officer or the disciplinary authority. Instead without considering this aspect of the matter, it is simply held against the petitioner that because water supply of his residence was stopped, petitioner initiated contempt action and it is held that stopping of water 14 supply to the residence of petitioner is a private dispute which has no connection with the judicial discharge of duties and therefore, it would not amount to criminal contempt. However, while doing so, both the departmental authority and the enquiry officer lost sight of the fact that petitioner had not initiated contempt action only because the water connection was discontinued. A criminal case was registered against the C.M.O. who is the Head of the Municipal Council and who admits that at his instance water supply has been supplied to the petitioner's residence. When a criminal case is registered against a person (accused) and when this accused person acts in a manner which has the effect of putting some pressure or indirectly influencing the Judicial Officer, the Judicial Officer can always take action for contempt as the act of the accused would amount to interfering with the administration of justice. If the grounds for initiating criminal contempt as has been considered by the Enquiry Officer in the enquiry report is taken note of, it would be seen that the petitioner had taken action because he bonafidely felt that the action of the C.M.O. in stopping the water supply is nothing but an act to somehow pressurize the petitioner to discharge him in a criminal case. If under such a bonafide belief the petitioner initiated action for contempt and had only issued a show cause notice and thereafter took steps for referring the matter to the High Court, it is not a fit case where departmental proceedings should be initiated. Bonafide of the petitioner and reason given by him for 15 initiating contempt action and act of the C.M.O. in stopping the water supply immediately after the case was registered and he was to be proceeded against by grant of bail, clearly goes to show that act of disconnection of water supply may be the result of criminal case registered and if a Judicial Officer under such a bonafide belief proceeds to initiate action for contempt, act of the Judicial Officer cannot be considered to be illegal or misuse of judicial position. The disciplinary authority and the enquiry officer with regard to this charge have not cared to consider the totality of the circumstances in the backdrop of these facts and bonafide of the petitioner. It may also be taken note of that the petitioner did not initiate action for contempt immediately on 29.8.2002. He proceeded in the matter only after the water supply was restored on 1.9.2002 and immediately informed the District Judge about the action proposed to be taken.
11. It has been held by the Enquiry Officer and the Disciplinary Authority that the action of the Chief Medical Officer doe not come within the purview of Criminal Contempt and therefore, petitioner committed an error in issuing show cause notice. However, while doing so, respondents lost sight of the fact that the petitioner had issued a contempt notice because the C.M.O was a accused in a criminal case pending before him and on the same day when he was released on bail, he took the aforesaid action and if the definition of Criminal Contempt appearing in Section 2(c) of Contempt of Courts Act, 1971 is taken note of it refers to : -
16any act which causes prejudice or interfere or tends to interfere with, the due course of any judicial proceedings or interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any manner whatsoever, is a "Criminal Contempt". The action of the C.M.O. may come within the purview of the aforesaid definition and if bonafidely believing so, the petitioner took action, we are of the considered view that the petitioner cannot be said to have committed any misconduct.
12. At this stage it may be relevant to take note of certain judgments relied upon by Shri R. P. Agrawal, learned Senior Counsel.
13. In the case of Ishwar Chand Jain (supra) in the matter of taking action against a Judicial Officer and imposing a punishment of dismissal on the Judicial Officer on the basis of the complaint received against the working of the Judicial Officer by an association of Advocates in para 14, the Supreme Court has made the following observations :
"14. Under the Constitution the High Court has control over the subordinate judiciary. While exercising that control it is under a constitutional obligation to guide and protect judicial officers. An honest strict judicial officer is likely to have adversaries in the mofussil courts. If complaints are entertained on trifling matters relating to judicial orders which may have been upheld by the High Court on the judicial side no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for Rule of law. If judicial officers are under 17 constant threat of complaint and enquiry on trifling matters and if High Court encourages annonymous complaints to hold the field the subordinate judiciary will not be able to administer justice in an independent and honest manner. It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. Having regard to facts and circumstances of the instant case we have no doubt in our mind that the resolution passed by the Bar Association against the appellant was wholly unjustified and the complaints made by Sh. Mehalawat and others were motivated which did not deserve any credit. Even the vigilance judge after holding enquiry did not record any finding that the appellant was guilty of any corrupt motive or that he had not acted judicially. All that was said against him was that he had acted improperly in granting adjournments."
14. If the defense of the petitioner and the act of the petitioner alleged against him are evaluated in the backdrop of the aforesaid principle, it would be seen that the petitioner in the bonafide belief that in a pending criminal case the accused is acting in a manner so as to hinder the cause of administration of justice and if the petitioner is shown to have acted bonafidely and if in the enquiry no malafides or improper motives are made out it is a case where High Court should not have interfered in the matter.
15. Similarly in the case of K. K. Dhawan (supra) powers to be exercised by the judicial or quasi judicial authority and the grounds for holding such act to be 18 misconduct is crystallized by the Supreme Court and in para 28 following principles are laid down :-
"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 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 19 Coke said long ago "though the bribe may be small, yet the fault is great."
If the aforesaid principles are taken note of, it would be seen that in a discharge of a quasi judicial or judicial function, disciplinary action can be taken in the event of cases contemplated in 6 categories mentioned herein above are made out. If the act of the petitioner in initiating contempt action is scrutinized in the backdrop of these six categories, it would be seen that the same would not fall in any of the aforesaid categories and therefore, we are of considered view that for this act of the petitioner no action could be taken.
16. Similarly, in the case of P.C. Joshi (supra) in para 6 the principles laid down in the case of Ishwar Chand Jain (supra) are taken note of and in para 7 following principles are laid down :-
"7. In the present case, though elaborate enquiry has been conducted by the Enquiry Officer, there is hardly any material worth the name forthcoming except to scrutinize each one of the orders made by the appellant on the judicial side to arrive at a different conclusion. That there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The Enquiry Officer has not found 20 any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly. Indeed the words of caution are given in K.K.Dhawans case [supra] and A.N.Saxenas case [supra] that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the appellant in this case."
17. In the present case also with regard to charges in question, the enquiry officer has not found any material with regard to the reputation, integrity or devotion to duty of the petitioner nor is any corrupt motive established. At best it may be a case where an error has been committed by the 21 petitioner in the matter of initiating contempt proceedings without intimating the District Judge and for the same we are of the considered view that no disciplinary action could be taken against the petitioner when there is no evidence to show evidence with regard to ulterior or corrupt motive.
18. Finally if the principles laid down in the case of Zunjarrao Bhikaji Nagarkar (supra) are taken note of, it would be seen that in paras 42 and 43 the principles for initiating departmental action is crystallized and it is held that merely on the basis of vague or incomplete information or on the grounds of suspicious or on error of law which does not constitute grave charge of misconduct, disciplinary action cannot be taken. In para 42 and 43 the principles are laid down in the following manner :-
"42. Initiation of disciplinary proceedings against an officer cannot take place on an information which is vague or indefinite. Suspicion has no role 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 the exercise of its power directed filing of appeal against that order in the the Appellate Tribunal could not be enough to proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty.22
43. If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge- sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi judicial authority. The entire system of administrative adjudication whereunder quasi judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings."
19. If the allegations leveled against the petitioner with regard to charge No.3 is scanned in the light of the aforesaid legal principle, it would be seen that apart from the 23 fact that the explanation and defense of the petitioner and the reason which prompted the petitioner to initiate action for contempt is not at all taken note of. The act of the petitioner can be viewed in a different way also. Petitioner is a Judicial Officer and has registered a criminal case against an officer. If the person who is an accused acts in a manner which has the effect of harassing or creating problems for the judicial officer. The Judicial Officer, like a prudent man can always think that the act of the person concerned is an act for interfering with the administration of justice and if he has issued a show cause notice for initiating action for contempt, the same per se cannot be termed as a act of misconduct. In the absence of evidence to show that in past also petitioner has been indulging in similar acts by misusing his judicial, or the alleged act was with ulterior motive, we are of the considered view that on the basis of this isolated instance and in the totality of the facts and circumstances so also the principles of law applicable in the matter, action against the petitioner with regard to allegation contained in Charge No.3 could not be taken. The allegations are not only incomplete but the findings recorded by the Enquiry Officer and accepted by the Disciplinary Authority is also not correct for the simple reason that by ignoring the explanation and defense of the petitioner in its totality, an assumption is drawn to hold this charge as 'proved' by only holding that the petitioner initiated action for contempt because water supply of his house through tankers was stopped by the C.M.O.. The charge in 24 the manner in which it has been framed seems to be incomplete or imappropriate as it does not refer to the correct scheme of facts in its correct prospective, i.e. it does not take into consideration the events pertaining to registration of criminal case and action taken by the accused in this criminal case to somehow create harassment to the petitioner and his family. Accordingly holding the petitioner guilty of this charge is not correct. It is a decision which cannot be upheld by this Court.
20. As far as Charge No.4 is concerned the allegation is that petitioner abated and instigated the lawyers in continuing with the strike for the period indicated herein above. Petitioner's explanation was that he has done nothing but it is the Lawyers who have themselves taken the action. For appreciating this charge certain background with regard to situation prevailing in Chanderi has to be taken note of. Chanderi is a small place and from the evidence available on record only 25-30 lawyers are practicing in the said place. The President of the Bar Association has been examined as a witness and he has categorically stated that the petitioner had no role to play in the Members of Bar going on strike, it is his case that in a small place when C.M.O. was harassing a Judicial Officer by disconnecting his water supply through tankers which was going on for some days prior to 29.8.2002 when the Judicial Officer was staying with his family, being members of legal fraternity, the lawyers were agitated and protested by representing to Collector, 25 requesting for transfer of the C.M.O., intimation with regard to strike was sent to the District Judge also on 5th itself. Petitioner submits his defense and point out that on 6th, 7th and 8th the petitioner was busy with the visit of the District Judge (Vigilance) and therefore, he could not inform the District Judge. On 7th, 8th and 9th there was public holiday and on 11th there was election of State Bar Council and therefore, lawyers were already not appearing. Under such circumstances, it cannot be said that petitioner has committed grave misconduct, merely because he did not inform the District Judge. The petitioner has stated that in the communication received from the Bar Association as the communication was addressed to District Judge, petitioner was under the bonafide belief that the District Judge is aware of the position. That apart, petitioner has stated that his mental condition was not such that he could apply his mind and did not act because of his mental condition and the other prevailing circumstances as was explained by him.
21. Be it as it may be, specific allegation against the petitioner is that Advocates of Chanderi observed strike from 6.9.2002 to 13.9.2002 and the petitioner by not informing the District Judge abatted, it is not known as to how the petitioner can be held responsible for abating the strike, merely because he has not inform the District Judge. With regard to the findings recorded by the Enquiry Officer in this regard it can be seen that the Enquiry Officer in his finding has clearly held that there is no material to hold that petitioner was 26 responsible for strike or that he had in any way instigated the Members of Bar to go on strike. The disciplinary authority has assumed that petitioner is equally responsible for abatement of strike because he did not inform the District Judge and adjourned all the cases ignoring certain principles laid down by the Supreme Court in the matter of strike by lawyers. Merely because petitioner adjourned the cases it cannot be attributed that he had instigated the lawyers to go on strike. The lawyers about 25 to 30 in numbers were abstaining from work at their own. No material is available on record to suggest that it is the petitioner who was responsible for the strike, before taking the extreme step for removing the petitioner from service, on this count, petitioner's unblemished service career of 15 to 20 years should have been taken note of and in the absence of adverse material, mere suspicion or presumption cannot be permitted to take place of proof for holding the petitioner guilty of this charge. As far as this charge is concerned, the same is based on assumption and presumption of the Enquiry Officer and petitioner is held guilty only because of the assumption drawn because he adjourned the cases and did not inform the District Judge, therefore, it is held that he has abated the strike. This approach cannot be accepted, as it is not a judicious or reasonable approach.
22. In the case of Anil Kumar Vs. Presiding Officer and others - AIR 1995 SC 1121, it has been laid down by the Supreme Court that in the matter of recording a finding 27 against a delinquent employee certain principles have to be adhered by the Enquiry Officer. While considering Enquiry report in para 5 and 6 of the said judgment, following principles are laid down :
"5...........It is well-settled that a disciplinary enquiry has to be a quasi-judicial enquiry held according to the principles of natural justice and the Enquiry Of- ficer has a duty to act judicially. The Enquiry Officer did not apply his mind to the evidence. Save setting out the names of the witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not credit- worthy. He did not permit a peep into his mind as to why the evidence produced by the management ap- pealed to him in preference to the evidence pro- duced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the Enquiry Officer. It has to be a speaking order in the sense that the conclusion is supported by reasons. This is too well-settled to be supported by a precedent. In Madhya Pradesh Industries Ltd. v. Union of India , this Court observed that a speaking order will at best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of 28 this only safeguard. Similarly in Mahabir Prasad v. State of Uttar Pradesh - (1971)1 SCR 201 : AIR 1970 SC 1302, this Court reiterated that satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that ap- pealed to the authority. It should all the more be so where the quasi-judicial enquiry may result in deprivation of livelihood or attach a stigma to the character. In this case the enquiry report is an or- der sheet which merely produces the stage through which the enquiry passed. It clearly disclosed a total non-application of mind and it is this report on which the General Manager acted in terminating the ser- vice of the appellant. There could not have been a gross case of non-application of mind and it is such an enquiry which has found favour with the Labour Court and the High Court.
6. Where a disciplinary enquiry affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the principles of natural justice, the minimum expectation is that the report must be a reasoned one. The Court then may not enter into the adequacy or sufficiency of evidence. But where the evidence is annexed to an order sheet and no correlation is established between the two showing application of mind, we are constrained to observe that it is not an enquiry report at all. Therefore, there 29 was no enquiry in this case worth the name and the order of termination based on such proceeding dis- closing non-application of mind would be unsustain- able."
(Emphasis Supplied) If the findings recorded by the Enquiry Officer which is accepted by the disciplinary authority is scrutinized in the backdrop of the principles laid down by the Supreme Court in the case of Anil Kumar (supra) it would be seen that for holding the petitioner to be guilty of charges leveled with regard to abating the strike by lawyers so also for holding him guilty for charge No.3, the findings are not based on cogent, admissible evidence but merely on the basis of surmises, assumptions and presumptions it is concluded that petitioner is guilty of charges leveled against him. Such a finding which is not based on cogent evidence or material but is a result of ipse dixit of the enquiry officer, cannot be accepted and based on such a finding the extreme punishment of removal from service cannot be imposed upon a Judicial Officer like the petitioner. If the findings recorded by the Enquiry Officer for holding the petitioner guilty of charges leveled against him, in the present case is also evaluated in the light of the aforesaid principles, it would be clear that in the absence of any specific proof and evidence being available, the petitioner is held guilty on the basis of presumption and assumption and the punishment imposed on the basis of such finding cannot be upheld.
3023. In the light of the aforesaid facts and circumstances, the reasons and the legal principles laid down by us, it is clear that the Enquiry Officer and the Disciplinary Authority have proceeded the matter in a manner which is not in accordance to law. The act of the petitioner with regard to Charge No.3 is a bonafide act and cannot be termed as a deliberate act to harass the Chief Medical Officer. That apart, the evidence to implicate the petitioner with charge No.4 is also not sufficient. Accordingly, the action taken for imposing the aforesaid punishment on the basis of material available on record is unsustainable.
24. Accordingly, this petition is allowed. Orders impugned Annexure P/1 dated 20.4.2005, P/2 dated 5.2.2004 and P/3 dated 5.11.2005 passed by the respondents removing the petitioner from service, order passed by the Appellate Authority rejecting his appeal and the findings recorded by the Enquiry Officer are quashed. Petitioner is directed to be reinstated in service with all consequential benefits.
25. Petition stands allowed with no order as to costs.
( RAJENDRA MENON ) ( ALOK ARADHE )
JUDGE JUDGE
Mrs.m i shra
31
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR W.P. No.16356/2005 ORDER For Consideration:
( RAJENDRA MENON ) JUDGE /01/2012 Hon'ble Shri Justice Alok Aradhe:
( ALOK ARADHE ) JUDGE /01/2012 POST FOR : /01/2012 ( RAJENDRA MENON ) JUDGE /01/2012