Gujarat High Court
Vijaykumar Ishwarlal Salat vs State Of Gujarat on 1 May, 2018
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/SCA/22558/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 22558 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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VIJAYKUMAR ISHWARLAL SALAT
Versus
STATE OF GUJARAT
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Appearance:
MR ANSHIN DESAI, SENIOR COUNSEL WITH MR VAIBHAV A
VYAS(2896) for the PETITIONER(s) No. 1
MR KM ANTANI, AGP for the RESPONDENT(s) No. 1
LAW OFFICER BRANCH(420) for the RESPONDENT(s) No. 2
MR GM JOSHI(370) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 01/05/2018
CAV JUDGMENT
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI) Page 1 of 36 C/SCA/22558/2017 CAV JUDGMENT
1. By way of this petition, which is filed under Article 226 of the Constitution of India, petitioner has prayed that the departmental proceedings initiated against the petitioner vide charge-sheet dated 07.10.2016 be quashed and set aside and thereby petitioner be reinstated in service with all consequential benefits.
2. At the request of learned advocates appearing for the parties, this petition is taken up for final hearing looking to the issue involved in the matter.
3. It is the case of the petitioner that he had initially joined the service of the respondents on 30.06.1997 as Civil Judge and Judicial Magistrate First Class and thereafter he was promoted to the post of Senior Civil Judge in the year 2005. Thereafter, he was promoted as Ad-hoc Additional District Judge in the year 2013 and as Additional District Judge in the year 2014. Thus, the petitioner has rendered more than 19 years of service. It is stated that petitioner came to be suspended from service with immediate effect vide suspension order dated 23.06.2016 and as on date he is under suspension.
4. The impugned charge-sheet dated 07.10.2016 was issued to the petitioner for misconduct Page 2 of 36 C/SCA/22558/2017 CAV JUDGMENT alleged to have been committed by him while he was working as 7th Additional District Judge, Surat from 25.07.2015 to 01.10.2015 and as 4th Additional District Judge, Surat from 09.02.2016 to 09.05.2016. Petitioner had submitted his defence statement on 15.12.2016 on the receipt of the said charge-sheet, wherein, he has explained in detail that he has not committed any misconduct as alleged in the charge-sheet. However, without considering the defence statement of the petitioner, Ms. Gita Gopi, Principal District Judge, Surat was appointed as Inquiry Officer by the Disciplinary Authority to inquire into the charges levelled against the petitioner. It is stated that Ms. Gita Gopi, learned Principal District Judge, Surat had expressed prima facie opinion against the petitioner in a random inquiry conducted by the said Judge and therefore when the said Judge has prima facie given opinion against the petitioner, the said Judge ought not to have been entrusted the task of conducting departmental inquiry against the petitioner.
5. It is thereafter stated that on realizing the said mistake, the respondent No.2 entrusted the task of departmental inquiry to Mr. L. S. Pirzada, learned Principal District Judge, Navsari. However, the said Judge was earlier Page 3 of 36 C/SCA/22558/2017 CAV JUDGMENT posted as Additional Sessions Judge, Surat and had passed a judicial order rejecting the bail application which was subsequently allowed by the petitioner which is the main charge i.e. charge No.1 in the charge-sheet. Thus, when the said learned Judge had decided the bail application in the same Sessions Case No.142 of 2014 of the same accused viz. Vinubhai Haribhai Patel, the said learned Judge ought not to have been entrusted the task of conducting departmental inquiry against the petitioner.
6. It is further the case of the petitioner that Mr. Nayanbhai L. Sukhadwala, District Government Pleader and Public Prosecutor, Surat is shown as witness No.2. However, the said person is also appointed as Presenting Officer in the departmental inquiry against the petitioner.
7. Thus, at the stage when the inquiry is yet not started, the petitioner has preferred the present petition.
8. On receipt of the advance copy, learned advocate Mr. G.M.Joshi has filed an affidavit-in- reply on behalf of the respondent No.2 in which it has been stated that there is sufficient material available with the respondent No.2 to justify initiation of the departmental action Page 4 of 36 C/SCA/22558/2017 CAV JUDGMENT against the petitioner. It is stated that this is not a case of isolated judgment/order which is being made the subject matter of the departmental inquiry. There is a chain of circumstances which indicated prima facie that the petitioner is not honestly exercising judicial power but the same is based on considerations other than the judicial ones. The respondent No.2 has already stated that they are taking all the steps which are required for the purpose of ensuring that the petitioner is afforded a full and reasonable opportunity to defend himself. In fact the Inquiry Officer Ms. Gita Gopi has already been changed and now the Principal District Judge, Navsari has been appointed as an Inquiry Officer. Further, Shri Nayanbhai L. Sukhadwala, District Government Pleader and Public Prosecutor has been relieved as a Presenting Officer as he is cited as witness in the inquiry. It is further stated in the reply affidavit that it is not a case of isolated order/judgment which is subject matter of enquiry. It is a common thread which is passing through the judgments either of acquittal in the cases of prosecution under Section 376 or Section 302 read with other sections of IPC wherein the orders of acquittal are recorded in spite of there being no scope for the same. It is not a case of judicial discretion but, to use the same phraseology as is used by the Hon'ble Page 5 of 36 C/SCA/22558/2017 CAV JUDGMENT Supreme Court, "the Disciplinary Authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power." In the present case, after considering the relevant material, the Disciplinary Authority came to a conscious decision to initiate departmental inquiry against the petitioner.
9. It is further stated that the reliance placed by the petitioner on the Vigilance Cell (Judicial Department) Rules, 1986 for the purpose of contending that it is only the Vigilance Cell at whose instance any preliminary inquiry can be conducted is without any substance.
10. It is further stated that reliance placed by the petitioner on the circular dated 19.01.2015 is misconceived and the said circular provides only guidelines.
11. Heard learned Senior Advocate Mr. Anshin Desai assisted by learned advocate Mr. Vaibhav Vyas for the petitioner and learned advocate Mr. G. M. Joshi for the respondent No.2 and learned Assistant Government Pleader Mr. K. M. Antani for the respondent No.1.
Page 6 of 36 C/SCA/22558/2017 CAV JUDGMENT12. Learned Senior Counsel Mr. Desai submitted that issuance of charge-sheet to a Judicial Officer is a serious matter. Therefore, while framing the charges, the Disciplinary Authority is required to seriously apply its mind and take into consideration the relevant materials which indicate a prima facie case against the delinquent employee and only then, the charge- sheet can be issued. After referring to the charges levelled against the petitioner, learned counsel submitted that the charges levelled against the petitioner are arising out of the judicial orders passed by the petitioner while exercising powers as a Judicial Officer. With regard to charge Nos. 2, 5, 7, 8 and 9, appeals are pending before the higher Forum and with regard to charge No.3, Revision Application is pending before this Court, whereas no appeal or revision application is filed with regard to the charge Nos. 4 and 6. It is further submitted that a charge-sheet cannot be issued against a judicial or quasi judicial authority merely because there is some mistake or error in passing the orders. However, in the present case judicial orders passed by the petitioner are made to be the basis of initiation of departmental inquiry without there being any material to indicate that there was any extraneous consideration on the part of the petitioner. Thus, initiation of Page 7 of 36 C/SCA/22558/2017 CAV JUDGMENT departmental inquiry on the basis of the judicial orders passed by the petitioner cannot be allowed to stand and therefore the impugned charge-sheet be quashed and set aside.
13. It is thereafter contended by the learned counsel that the so-called 'random' inquiry conducted by the Principal District Judge is without authority of law and such a course of action is impermissible. Such random inquiry is merely on the basis of the details called for by the Principal District Judge from the concerned Public Prosecutor regarding few judicial orders passed by the petitioner and by re-appreciating the evidence in the said few cases, the Principal District Judge expressed an adverse opinion against the petitioner. Thus, such course adopted by the Principal District Judge is impermissible.
14. So far as charge No.1 levelled against the petitioner in the impugned charge-sheet is concerned, learned counsel contended that in the said charge it is alleged against the petitioner that he had granted bail to the accused - applicant of Criminal Misc. Application No.2436 of 2015 vide order dated 07.09.2015. It is alleged that earlier the bail application preferred by the said accused was rejected twice by the Additional Sessions Judge, once by the Page 8 of 36 C/SCA/22558/2017 CAV JUDGMENT High Court and thereafter by the Hon'ble Supreme Court and in spite of there being no change of circumstances, the petitioner had granted bail to the accused considering the evidence of the hostile witnesses. Thus, granting of bail to the said accused in the mids of the trial without assigning cogent reasons or citing change in circumstances, is indicative of oblique motive and consideration other than judicial consideration. However, the learned counsel submitted that there was a material change in the circumstances as two witnesses against the applicant - accused had turned hostile and there was no evidence against the applicant - accused even as per the case of the prosecution. Thus, there was a material change in the circumstances. Hence, the petitioner granted bail to the applicant - accused. The petitioner assigned cogent and convincing reasons while granting bail to the accused. The said order passed by the petitioner was suspended by the petitioner himself on the application submitted by the Special Public Prosecutor. It is submitted that it is true that the order passed by the petitioner granting bail to the concerned applicant - accused is set aside by this Court when the application for cancellation of bail is filed. However, on that ground charge cannot be framed against the petitioner.
Page 9 of 36 C/SCA/22558/2017 CAV JUDGMENT15. Learned counsel Mr. Desai further submitted that as per the provisions contained in Rule 4(d) of the Vigilance Cell (Judicial Department) Rules, 1986, it is specifically provided that the Vigilance Cell shall be in charge of investigation including laying traps, making discreet and/or preliminary inquiries on the complaints received and also launching prosecutions in the Courts of law. Thus, the Principal District Judge, Surat could not have conducted the 'random inquiry' by scrutinizing the judicial decisions of the petitioner. At this stage, learned counsel contended that even the Rules provide for the manner in which the preliminary inquiries are to be conducted. However, no preliminary inquiry is conducted. As per the guidelines issued by this Court vide circular dated 19.01.2015, it is provided that the complaint making allegations against the members of subordinate Judiciary in the State should not be entertained and no action should be taken thereon unless it is accompanied by a duly sworn affidavit and/or verifiable material to substantiate the allegations made therein. In the present case, so far as charge Nos. 2 to 9 are concerned, there is no complaint against the petitioner. Therefore, the charge-sheet ought not to have been issued to the petitioner.
Page 10 of 36 C/SCA/22558/2017 CAV JUDGMENT16. Learned counsel Mr. Desai would further contend that from the charges levelled against the petitioner in the impugned charge-sheet it cannot be said that the petitioner has violated Rule 3 (1)(i) and 3(1)(iii) of the Gujarat Civil Services (Conduct) Rules, 1971. He would further contend that though the scope of interference at the stage of issuance of charge-sheet while exercising the powers under Article 226 of the Constitution of India by the High Court is limited, the charge-sheet can be quashed in rare and exceptional cases.
17. In support of the aforesaid contentions, learned counsel Mr. Desai has placed reliance upon the following decision rendered by the Hon'ble Supreme Court as well as by this Court:
1. Ramesh Chander Singh v. High Court of Allahabad, reported in 2007 (4) SCC 247.
2. Kashi Nath Roy v. State of Bihar, reported in 1996(4) SCC 539.
3. Zunjarrao Bhikaji Nagarkar v. Union of India, reported in 1999(7) SCC 409.
4. Union of India v. Kunisetty Satyanarayan, reported in 2006(12) SCC 28.
5. Rajesh and others v. Rajbir Singh and others, reported in 2013(9) SCC 54.Page 11 of 36 C/SCA/22558/2017 CAV JUDGMENT
6. Chirag M. Pathak v. Dollyben Kantilal Patel, reported in 2018(1) SCC 330.
7. Dineshbhai Chandubhai Patel v. State of Gujarat, reported in 2018(3) SCC
104.
8. Kamleshkumar B. Mehta v. Registrar, High Court of Gujarat, reported in 2004 (3) GLR 2290.
9. S. J. Pathak v. State of Gujarat, reported in 2010(1) GLR 153.
10. Judgment dated 15.09.2017 rendered by the Division Bench of this Court in Special Civil Application No.11804 of 2017.
18. On the other hand, learned advocate Mr. G. M. Joshi appearing for the respondent No.2 raised a preliminary objection with regard to maintainability of the present petition and contended that the present petition is premature as the petitioner has challenged the initiation of the inquiry by the respondent No.2 in the allegations levelled against him which are prima facie found to be worth a detailed inquiry. Therefore, at this stage, this Court may not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India.
19. Learned counsel Mr. Joshi would contend that ordinarily a writ application does not lie against the charge-sheet or show cause notice Page 12 of 36 C/SCA/22558/2017 CAV JUDGMENT for the reasons that it does not give any rise to any cause of action. Thus, the present writ petition challenging issuance of charge-sheet may not be entertained by this Court.
20. Learned advocate Mr. Joshi thereafter submits that there is sufficient material available with respondent No.2 to justify initiation of departmental inquiry against the petitioner. It is submitted that this is not a case of isolated judgment or order which is being made subject matter of the departmental inquiry. There is a chain of circumstances which indicated prima facie that the petitioner is not honestly exercising judicial power but the same is based on considerations other than the judicial ones. It is a common thread which is passing through the judgments either of acquittal in the cases of prosecution under Section 376 or Section 302 read with other sections of IPC wherein the orders of acquittal are recorded in spite of there being no scope for the same. It is not a case of judicial discretion but, to use the same phraseology as is used by the Hon'ble Supreme Court, "the Disciplinary Authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power."
Page 13 of 36 C/SCA/22558/2017 CAV JUDGMENTThe Disciplinary Authority after considering the relevant material came to a conscious decision to initiate the departmental inquiry against the petitioner.
21. Learned Counsel Mr. Joshi further submits that Principal District Judge, Surat received a letter from the concerned District Government Pleader, Surat forwarding an affidavit sworn by Bhavika Dharmeshbhai Bhise making certain allegations on the legal procedure adopted in Sessions Case No.350 of 2014. Further, two applications were received by the Principal District Judge, Surat alleging against corrupt practice adopted by Mr. J. R. Lad, Superintendent. Pursuant thereto, the Principal District Judge called for explanation from the petitioner. Thereafter, a letter was written on 11.04.2016 by the Principal District Judge drawing attention of this Court about the conduct of the petitioner. The same was placed before the concerned Unit Judge and the Hon'ble Chief Justice and thereafter it was decided to place the same before the Standing Committee. Similarly one Mr. Pravinchandra Rangiladas Kapasiwala had also made allegations on affidavit dated 19.01.2016 against the petitioner in connection with granting bail application in Sessions Case No.142 of 2014 to the concerned accused which was Page 14 of 36 C/SCA/22558/2017 CAV JUDGMENT earlier rejected by the Sessions Court, this Court as well as the Hon'ble Supreme Court. The said affidavit also placed before the concerned Unit Judge wherein the Principal District Judge, Surat was requested to call for explanation of the petitioner and to forward the same to the Vigilance Cell along with detailed report with specific view and considered opinion with regard to the allegations made in the complaint after verifying the record. Thereafter, the Principal District Judge, Surat, vide letter dated 06.04.2016 submitted a detail report along with explanation dated 15.03.2016 submitted by the petitioner. Such material was placed before the Hon'ble the Chief Justice who was pleased to place the said matter before the Standing Committee. In the meeting of the Standing Committee held on 21.06.2016 it was resolved to initiate regular departmental inquiry against the petitioner and he be suspended from service pending inquiry. Thus, it is submitted by learned advocate Mr. Joshi that conscious decision was taken on the basis of the material by the Standing Committee. Thus, the contention of learned counsel for the petitioner that only Vigilance Cell can conduct the preliminary inquiry, is misconceived. It is submitted that Principal District Judge as well can bring sufficient material to the notice of the Page 15 of 36 C/SCA/22558/2017 CAV JUDGMENT Disciplinary Authority, which in the present case, is the High Court.
22. Learned advocate Mr. Joshi has placed reliance upon the following decisions rendered by the Hon'ble Supreme Court.
1. Secretary, Ministry of Defence & Others v. Prabhash Chandra Mirdha, reported in 2012 (11) SCC 565.
2. R. R. Parekh v. High Court of Gujarat, reported in 2016 (14) SCC 1.
23. Learned Assistant Government Pleader Mr. Antani has supported the contentions canvassed by learned advocate Mr. Joshi appearing for the respondent no.2.
24. Having heard the learend advocates appearing for the parties and having gone through the material produced on record, it has emerged that respondent No.2 has issued charge-sheet dated 07.10.2016 to the petitioner in which 9 charges are levelled against the petitioner. Present petition is filed at the stage when the charge- sheet is issued to the petitioner and full-fledge departmental inquiry is yet to be conducted against the petitioner. Thus, in the present petition, the preliminary contention raised by learned advocate Mr. Joshi appearing for the Page 16 of 36 C/SCA/22558/2017 CAV JUDGMENT second respondent with regard to maintainability of the present petition is required to be considered first.
25. In the case of Secretary, Ministry of Defence & Others (supra), the Hon'ble Supreme Court has observed in para 10 and 12 as under:
"10. Ordinarily a writ application does not lie against a charge-sheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, chargesheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a chargesheet or show cause notice in disciplinary proceedings should not ordinarily be quashed by the Court. (Vide : State of U.P. v. Brahm Datt Sharma, AIR 1987 SC 943; Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh & Ors., (1996) 1 SCC 327; Ulagappa & Ors. v. Div. Commr., Mysore & Ors., AIR 2000 SC 3603 (2); Special Director & Anr. v. Mohd. Ghulam Ghouse & Anr., AIR 2004 SC 1467; and Union of India & Anr. v. Kunisetty Satyanarayana, AIR 2007 SC 906).
xxx xxx xxx
12. Thus, the law on the issue can be summarised to the effect that chargesheet Page 17 of 36 C/SCA/22558/2017 CAV JUDGMENT cannot generally be a subject matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the chargesheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings.
26. In the case of R. R. Parekh (supra), the Hon'ble Supreme Court has observed and held in para 16 as under:
"16. The issue of whether a judicial officer has been actuated by an oblique motive or corrupt practice has to be determined upon a careful appraisal of the material on the record. Direct evidence of corruption may not always be forthcoming in every case involving a misconduct of this nature. A wanton breach of the governing principles of law or procedure may well be indicative in a given case of a motivated, if not reckless disregard of legal principle. In the absence of a cogent explanation to the contrary, it is for the disciplinary authority to determine whether a pattern has emerged on the basis of which an inference that the judicial officer was actuated by Page 18 of 36 C/SCA/22558/2017 CAV JUDGMENT extraneous considerations can be drawn. Cases involving misdemeanours of a judicial officer have to be dealt with sensitivity and care. A robust common sense must guide the disciplinary authority. At one end of the spectrum are those cases where direct evidence of a misdemeanour is available. Evidence in regard to the existence of an incriminating trail must be carefully scrutinized to determine whether an act of misconduct is established on the basis of legally acceptable evidence. Yet in other cases, direct evidence of a decision being actuated by a corrupt motive may not be available. The issue which arises in such cases is whether there are circumstances from which an inference that extraneous considerations have actuated a judicial officer can legitimately be drawn. Such an inference cannot obviously be drawn merely from a hypothesis that a decision is erroneous. A wrong decision can yet be a bona fide error of judgment. Inadvertence is consistent with an honest error of judgment. A charge of misconduct against a judicial officer must be distinguished from a purely erroneous decision whether on law or on fact. The legality of a judicial determination is subject to such remedies as are provided in law for testing the correctness of the determination. It is not the correctness of the verdict but the conduct of the officer which is in question. The disciplinary authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power. The circumstances let into evidence to establish misconduct have to be sifted and evaluated with caution. The threat of Page 19 of 36 C/SCA/22558/2017 CAV JUDGMENT disciplinary proceedings must not demotivate the honest and independent officer. Yet on the other hand, there is a vital element of accountability to society involved in dealing with cases of misconduct. There is on the one hand a genuine public interest in protecting fearless and honest officers of the district judiciary from motivated criticism and attack. Equally there is a genuine public interest in holding a person who is guilty of wrong doing responsible for his or his actions. Neither aspect of public interest can be ignored. Both are vital to the preservation of the integrity of the administration of justice."
27. Thus, from the aforesaid decisions rendered by the Hon'ble Supreme Court, it can be said that ordinarily a writ application does not lie against a charge-sheet or show cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by person having no jurisdiction/competence to do so. Charge-sheet does not infringe the right of a party. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings. It is further revealed from the aforesaid decision that the issue of whether a Page 20 of 36 C/SCA/22558/2017 CAV JUDGMENT judicial officer has been actuated by an oblique motive or corrupt practice has to be determined upon a careful appraisal of the material on the record. Direct evidence of corruption may not always be forthcoming in every case involving a misconduct of this nature. The Disciplinary Authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power. The threat of disciplinary proceedings must not demotivate the honest and independent officer. Yet on the other hand, there is a vital element of accountability to society involved in dealing with cases of misconduct. There is on the one hand a genuine public interest in protecting fearless and honest officers of the district judiciary from motivated criticism and attack. Equally there is a genuine public interest in holding a person who is guilty of wrong doing responsible for his or his actions. Neither aspect of public interest can be ignored. Both are vital to the preservation of the integrity of the administration of justice. Thus, keeping in view the aforesaid decisions rendered by the Hon'ble Supreme Court, facts of the present case are to be considered.
28. In the impugned charge-sheet dated Page 21 of 36 C/SCA/22558/2017 CAV JUDGMENT 07.10.2016, 9 charges are levelled against the petitioner. So far as charge No.1 is concerned, it is alleged that in Sessions Case No.142 of 2014, bail applications filed by the accused Vinubhai Haribhai Patel were rejected twice by the Court of Additional Sessions Judge, Surat, once by the High Court and the Hon'ble Supreme Court. However, the petitioner granted bail to the said accused by an order dated 07.09.2015 without there being any change in circumstances. It is alleged that granting of bail to the said accused in the midst of trial without assigning cogent reasons or citing change in circumstances is indicative of oblique motive and consideration other than judicial one. At this stage, it is required to be noted that the bail granted to the aforesaid accused has been cancelled by this Court. The father of the deceased viz. Pravinchandra Kapasiwala submitted a written complaint dated 19.01.2016 on affidavit to the Hon'ble the Chief Justice of this Court in which a request was made to make necessary inquiry into the granting of bail to the concerned accused by the present petitioner. From the record, it is revealed that the concerned Principal District Judge also made a random inquiry with regard to various orders passed by the present petitioner and on the basis of the material collected, the Principal District Judge vide letter dated Page 22 of 36 C/SCA/22558/2017 CAV JUDGMENT 06.04.2016 submitted a detailed report along with the explanation given by the petitioner. The said material was placed before the Hon'ble the Chief Justice, who was pleased to place the said matter before the Standing Committee. In the meeting of the Standing Committee held on 21.06.2016, it was resolved to initiate regular departmental inquiry against the petitioner and it was also decided to suspend the petitioner from service pending inquiry. Thus, a conscious decision was taken on the basis of the material placed before the Standing Committee of this Court.
29. Thus, from the material placed before this Court and in the facts and circumstances of the present case, we are not inclined to exercise the extraordinary jurisdiction vested under Article 226 of the Constitution of India at the stage of issuance of the charge-sheet.
30. The contention raised by the learned Senior Counsel Mr. Desai on merits are not required to be considered at this stage as the departmental inquiry is yet to be proceeded further.
31. In the case of Dr. Dilip Kumar Deka v. State of Assam, reported in (1996) 6 SCC 234, the Hon'ble Supreme Court has observed in para 10 as under:
Page 23 of 36 C/SCA/22558/2017 CAV JUDGMENT"10. If the learned Judge's reasoning to make the impugned remarks is taken to its logical conclusion, it would mean that whenever a superior Court sets aside a finding of a lower Court, which is patently wrong, the former gets a charter to make vituperative remarks against the latter simply because it had recorded such a finding. Before drawing any conclusion that an inferior body on Court has recorded a wrong finding with an ulterior motive or for an oblige purpose the superior body or Court, as the case may be, must demonstrate that there are materials - other than the patently wrong finding which impels it to so conclude. Else, the conclusion would be presumptuous and justice and fair play would be casualities."
32. In the case of Ramesh Chander Singh (supra), the Hon'ble Supreme Court has observed in para 11, 12, 14 and 17 as under:
"11. We fail to understand as to how the High Court arrived at a decision to initiate disciplinary proceedings solely based on the complaint, the contents of which were not believed to be true by the High Court. If the High Court were to initiate disciplinary proceedings based on a judicial order, there should have been strong grounds to suspect officer's bona fides and the order itself should have been actuated by malice, bias or illegality. The appellant-officer was well within his right to grant bail to the accused in discharge of his judicial functions. Unlike provisions for granting bail in TADA Act or NDPS Act, there was no statutory bar in granting bail to the Page 24 of 36 C/SCA/22558/2017 CAV JUDGMENT accused in this case. A Sessions Judge was competent to grant bail and if any disciplinary proceedings are initiated against the officer for passing such an order, it would adversely affect the morale of subordinate judiciary and no officer would be able to exercise this power freely and independently.
12. This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, High Court must take extra care and caution.
xxx xxx xxx
14. In K.P. Tiwari v. State of Madhya Pradesh, AIR 1994 SC 1031, where the High Court reversed the order passed by the lower court making remarks about interestedness and motive of the lower court in passing the unmerited order, this Court observed that one of the functions of the higher court is either to modify or set aside erroneous orders passed by the lower courts. Our legal system acknowledges fallibility of judges. It has to be kept in mind that a subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure -- contestants and lawyers breathing down his neck. He does not enjoy the detached atmosphere of the higher Page 25 of 36 C/SCA/22558/2017 CAV JUDGMENT court. Every error, however gross it may be, should not be attributed to improper motives. The Judges of the High Court have a responsibility to ensure judicial discipline and respect for the judiciary from all concerned. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary if the higher courts express lack of faith in the subordinate judiciary for some reason or other. That amounts to destruction of judiciary from within.
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17. In Zunjarrao Bhikaji Nagarkar v. Union of India this Court held that wrong exercise of jurisdiction by a quasi judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. Of course, if the Judicial Officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Art. 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate judicial officers and subjecting them to severe disciplinary proceedings would ultimately harm the judicial system at the grassroot level."Page 26 of 36 C/SCA/22558/2017 CAV JUDGMENT
33. In the case of Kashi Nath Roy (supra), the Hon'ble Supreme Court has observed in para 6 and 7 as under:
"6. As embedded in the criminal jurisprudence obtaining in this country, courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non- grant of bail. For, in that manner, the principle of "presumption of innocence of an accused" gets jeopardized; and the structural principle of "not guilty till proved guilty" gets destroyed, even though all sane elements have always understood that such views are tentative and not final, so as to affect the merit of the matter. Here, the appellant has been caught and exposed to a certain adverse comment and action solely because in reasoning he had disclosed his mind while granting bail. This may have been avoidable on his part, but in terms not such a glaring mistake or impropriety so as to visit the remarks that the High Court has chosen to pass on him as well as to initiate action against him, as proposed.
7. It cannot be forgotten that in our system, like elsewhere, appellate and revisional courts have been set up on the pre-supposition that lower courts would in some measure of cases go wrong in decision-making, both on facts as also on law, and they have been knit-up to correct those orders. The human element in justicing being an important element, computer-like functioning cannot be expected of the courts; however hard they Page 27 of 36 C/SCA/22558/2017 CAV JUDGMENT may try and keep themselves precedent- trodden in the scope of discretions and in the manner of judging. Whenever any such intolerable error is detected by or pointed out to a superior court, it is functionally required to correct that error and may, here and there, in an appropriate case, and in a manner befitting, maintaining the dignity of the Court and independence of judiciary, convey its message in its judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellow but clear, and result- orienting, but rarely as a rebuke. Sharp reaction of the kind exhibited in the afore-extraction is not in keeping with institutional functioning. The premise that a Judge committed a mistake or an error beyond the limits of tolerance, is no ground to inflict condemnation on the Judge-Subordinate, unless there existed something else and for exceptional grounds."
34. In the case of Zunjarrao Bhikaji Nagarkar (supra), the Hon'ble Supreme Court has observed in para 42, 43 and 44 as under:
"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 Page 28 of 36 C/SCA/22558/2017 CAV JUDGMENT proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty.
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.
44. Considering whole aspects of the matter, we are of the view that it was not a case for initiation of any disciplinary proceedings against the appellant. Charge of misconduct against him was not proper. It has to be quashed.Page 29 of 36 C/SCA/22558/2017 CAV JUDGMENT
35. We have gone through the aforesaid decisions upon which the reliance is placed by the learned counsel appearing for the petitioner. There cannot be any dispute with regard to the proposition of law laid down by the Hon'ble Supreme Court in the aforesaid decisions. However, in the facts and circumstances of the present case, as discussed hereinabove, there is sufficient material on record to initiate departmental inquiry against the petitioner and when the Standing Committee of this Court has taken a conscious decision after considering the material produced before it, we see no reason to interfere with the same.
36. In the case of Kamleshkumar B. Mehta (supra), the Division Bench of this Court has observed in para 12.10 and 12.11 as under:
"12.10 There is not even an iota of evidence on record to show that the delinquent probationer was actuated by any oblique motive. The muddamal goods being edible oil were of perishable nature and since they were lying in a seized condition for nearly one month on the date when the order was made by the delinquent, it cannot be said that this judicial officer acted in dereliction of his duties while exercising his judicial function of ordering the return of muddamal oil barrels on just and proper conditions. The fact that he ought to have made more elaborate inquiry or that a different view could be judicially taken did not make his Page 30 of 36 C/SCA/22558/2017 CAV JUDGMENT order reckless or negligently made. On the basis of the material on record, it was unreasonable and unjust to find the delinquent guilty merely on surmises, conjectures and unwarranted inferences which have been unfortunately resorted to in the present case.
12.11 As held by the Supreme Court in P.C.Joshi v. State of U.P., reported in AIR 2001 SC 2788, the fact that there was possibility on a given set of facts to arrive at different conclusion was not a ground to indict a judicial officer for taking one view and to allege misconduct for that reason alone. Even if the view taken by the delinquent officer was not proper or correct, that was no ground for attributing any motive to him for making such a judicial order. The Supreme Court in Ishwar Chand Jain v. High Court of Punjab, reported in AIR 1988 SC 1395, held that, while considering the complaint of irregularity against the judicial officer on probation, the High Court should have kept in mind that the incidents which were subject matter of inquiry related to the very first year of officer's service. Every judicial officer is likely to commit mistake of some kind or the other in passing orders in the initial stage of his service which a mature judicial officer would not do. However, if the orders are passed without there being any corrupt motive, the same should be overlooked by the High Court and proper guidance should be provided to him. If after warning and guidance, the officer on probation is not able to improve, his services should be terminated."
37. The aforesaid decision would not render any Page 31 of 36 C/SCA/22558/2017 CAV JUDGMENT assistance to the petitioner as the said decision was rendered by the Division Bench of this Court at the stage when the departmental inquiry was concluded. Similarly, the decision rendered by the Division Bench of this Court in the case of S. J. Pathak (supra) would also not be helpful to the petitioner as the said decision was rendered on the basis of the facts of the said case and at the stage when the departmental inquiry was concluded.
38. The reliance placed by learned counsel Mr. Desai for the petitioner on the decision rendered by the Division Bench of this Court on 15.09.2017 in Special Civil Application No.11804 of 2017 is misconceived. In the said case, no complaint in writing was made against the concerned petitioner. Though alleged incident, as per the statement recorded of the witness, has taken place on 22.03.2012, no complaint was made in writing. The only basis for initiation of the proceedings appears to be that of oral representation made to the then Hon'ble Chief Justice during his visit to Rajkot District on 28.05.2012. The remarks were called for by addressing confidential letter to the Principal District Judge. However, Departmental Inquiry was initiated only on 21.01.2017 by issuing a charge memo. Thus, in the said case, there was an Page 32 of 36 C/SCA/22558/2017 CAV JUDGMENT abnormal and inordinate delay in initiating the departmental proceedings. Further, it was observed by the Division Bench that as per the circular instructions dated 25.04.2017, complaint making allegations against the members of the Subordinate Judiciary in the State should not be entertained and no action should be taken thereon unless it is accompanied by duly sworn affidavit and/or verifiable material to substantiate the allegations made therein. In the said case, in absence of any written complaint, initiation of departmental proceedings pursuant to oral representation was not approved by this Court. However, in the present case, so far as charge No.1 is concerned, Shri Pravinchandra Kapasiwala, father of the deceased, has submitted a written complaint on affidavit, whereas, so far as other charges are concerned, a random inquiry was conducted by the Principal District Judge, Surat on the basis of the information received by her and thereafter report was submitted to this Court which was ultimately placed before the Standing Committee in which a conscious decision was taken to initiate departmental inquiry against the petitioner. Thus, in the facts and circumstances of the present case, the decision rendered by the Division bench of this Court on 15.09.2017 in Special Civil Application NO.11804 of 2017 would not render any assistance to the petitioner.
Page 33 of 36 C/SCA/22558/2017 CAV JUDGMENT39. In the case of Kunisetty Satyanarayan (supra), the Hon'ble Supreme Court has held that writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. However, in very rare and exceptional cases, if the charge- sheet is found to be wholly without jurisdiction or if it is wholly illegal, such powers can be exercised by the High Court. There is no dispute with regard to the aforesaid proposition of law and on the contrary in the present case the petitioner has failed to point out that the issuance of the charge-sheet is without jurisdiction or it is illegal.
40. Other judgments on which reliance is placed by the learned counsel Mr. Desai are not helpful to the petitioner in the facts of the present case.
41. In the facts of the present case, there is sufficient material available with the respondent No.2 to justify initiation of departmental inquiry against the petitioner. For the sake of repetition, it is to be noted that this is not a case of isolated judgment or order which is being made subject matter of the departmental inquiry.
Page 34 of 36 C/SCA/22558/2017 CAV JUDGMENTThere is a chain of circumstances which indicated prima facie that the petitioner is not honestly exercising judicial power but the same is based on considerations other than the judicial one. As submitted by learned advocate Mr. Joshi appearing for the respondent No.2 that it is a common thread which is passing through the judgments either of acquittal in the cases of prosecution under Section 376 or Section 302 read with other sections of IPC wherein the orders of acquittal are recorded in spite of there being no scope for the same. The submission of learned counsel Mr. Desai that Rules of Vigilance Cell (Judicial Department) Rules, 1986 are not followed, cannot be accepted in the facts of the present case.
42. In view of the aforesaid discussion, we are of the view that this is not a fit case in which this Court can exercise the powers under Article 226 of the Constitution of India at the stage of issuance of charge-sheet. Thus, petitioner is not entitled to claim the relief as prayed for in the petition. Accordingly, the petition is dismissed.
43. However, it is clarified that we have not gone into the merits of the charges levelled against the petitioners in the impugned charge- sheet issued to the petitioner and any of the Page 35 of 36 C/SCA/22558/2017 CAV JUDGMENT observations made by us in the present order shall not come in the way of the petitioner during the course of departmental inquiry. The departmental inquiry be conducted without being influenced by any observations made in this order.
(R.SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J) Jani Page 36 of 36