Madras High Court
V.C.Rajamanickam vs The State Of Tamil Nadu on 13 August, 2007
Author: K.Mohan Ram
Bench: K.Mohan Ram
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 13.08.2007
CORAM
THE HON'BLE MR.JUSTICE R.BALASUBRAMANIAN
and
THE HON'BLE MR.JUSTICE K.MOHAN RAM
Writ Petition No.22983 of 2005
V.C.Rajamanickam .. Petitioner
-Vs.-
1. The State of Tamil Nadu
Represented by the Chief Secretary to Government
Public (Special A) Department
Fort St. George, Chennai - 600 009
2. The Registrar General
High Court, Madras,
Chennai - 600 104 .. Respondents
Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records of the first respondent in proceedings No.G.O.Ms.No.360 dated 08.04.2005 Public (Special.A) Department and quash the same and consequently direct the respondents to reinstate the petitioner with all consequential benefits including monetary benefits as applicable to the post of Principal District Judge with effect from 15.06.2002.
For Petitioner : Mr. T.R.Rajagopalan, Senior Counsel and
Mr. R.Yashod Vardhan, Senior Counsel for
Mr. M.Muthu Pandian
For Respondents : Mr. P.S.Raman, Additional Advocate General
for Mrs. Bhavani Subbaroyan, Govt. Advocate
Mr. R.Viduthalai, G.A.,
(appointed as amicas curiae)
- - -
O R D E R
(Order of the court was made by Justice K.Mohan Ram) The petitioner has approached this Court against the proceedings of the first respondent issued in G.O.Ms.No.360, dated 08.04.2005, Public (Special-A) Department, dismissing him from service after the disciplinary proceedings in which it was found that the petitioner was guilty of three charges out of six charges framed against him.
2. The petitioner was appointed as District Munsif, Dharmapuri in the year 1986. He was promoted as Sub-Judge in 1989 and thereafter he was promoted as the Additional District Judge in 1998. When he was posted at Perambalur as Principal District Judge, the Bar Association (Criminal), Perambalur, sent a representation dated 28.05.2002 signed by the Joint Secretary, R.Kannan, to the Hon'ble Portfolio Judge seeking transfer of the petitioner from the post of Principal District Judge, Perambalur to some other station. In the said representation the allegation interalia was that the Public Prosecutor-T.Pichai Pillai has started a rival Bar Association called District Court Advocates Association and that the petitioner was supporting the said association and its members. On 04.06.2002 the Bar Association submitted another representation to the Hon'ble Chief Justice requesting that suitable action be taken against the petitioner and in the said representation apart from the allegations contained in the representation dated 28.05.2002 it was alleged that the petitioner has made disrespectful remarks about the integrity of the Hon'ble Judges of the High Court. On 14.06.2002 the petitioner was placed under suspension on the ground that the enquiry into the grave charges of corruption was contemplated. On 08.07.2002, the Special Officer, Vigilance Cell, Madras High Court, after conducting a preliminary enquiry submitted a report. In the said report the Special Officer found the allegations relating to demand of bribe, remarks against the Hon'ble High Court Judges and not adhering to Court working hours were prima facie substantiated and the allegation relating to a staff member acting as a tout was unsubstantiated. In the said report, the Special Officer has also observed that there was no evidence for connecting the petitioner and the Public Prosecutor-Mr.Pichai Pillai and that the allegation was not substantiated. The petitioner was called upon to submit his explanation to the said report of the Special officer, Vigilance, and the petitioner submitted his explanation on 11.09.2002. In his explanation the petitioner submitted that he was a victim of the bitter rivalry between the Bar Association (Criminal) and the association headed by the Public Prosecutor. As his explanation was not accepted the charge proceedings were issued in order R.O.C.No.48/2002-Con.B2 dated 25.11.2003 framing six charges against the petitioner. Since Charge Nos.1, 5 and 6 have been found to be not proved by the Enquiring Judge, Charge Nos.2, 3 and 4 which have been found to be proved alone are set out below:-
"CHARGE No.2 "That you Thiru.V.C.Rajamanickam, District Judge, now under suspension, while functioning as Principal District Judge, Perambalur, on many occasions had spoken to the members of the bar in the open court as follows:
"When the High Court's Judges are receiving large amount as bribe, why not we and Public Prosecutor? Can you say whether all the High Court Judges are with clean hands".
and also made the following comments before Thiru.V.Govindarajan, President, Bar Association (Criminal), Perambalur, when he met you in your Chamber for complaining against Thiru.Pitchapillai, Public Prosecutor;
"ahh;jhd; ifia Rj;jk; Rak;gpufhrkhf itj;Jf; bfhz;L ,Uf;fpwhh;fs;/ cah;ePjpkdpwj;jpy; mjpfkhf gpurz;nl$; th';Ffpwhh;fs;/ (ePjpgjpfis Fwpj;J)/ ,';F fk;kpahf th';Ffpwhh;fs;/ muR Jiw tHf;fwp"h; mth;fspd; gphpaL/ mth; brhy;tij jhd; ehd; nfl;ngd;/ mtiu mDrhpj;J ngh';fs;".
thus used disparaging language and made unparliamentary comments upon the Hon 'ble Judges of the High Court and failed to maintain the dignity and the decorum of the Court and thus committed the acts of insubordination and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules".
CHARGE - 3 "That you Thiru.V.C.Rajamanickam, District Judge, now under suspension, while functioning as Principal District Judge, Perambalur during the course of trial in A.S.No.77/2001 on the file of the Principal District Court, Perambalur had demanded bribe from Thiru.C.Ramdoss, the first respondent in the said A.S. for favouring him in the case, that when the said Ramdoss refused to pay the bribe, you had allowed the said Appeal Suit on 30.04.2002, thus indulged in corrupt practise and committed the acts of misuse of power and abuse of process of law and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules".
CHARGE - 4 "That you Thiru.V.C.Rajamanickam, District Judge, now under suspension, while functioning as Principal District Judge, Perambalur, during the course of trial in A.S.77/2001 on the file of Principal District Court, Perambalur had called Thiru.C.Ramdoss, the first respondent in the said suit and his counsel to your chamber, that when they came to your chamber, you had discussed the case with them, which you ought not to have done, thus committed the acts of abuse of process of law, failure to maintain the court procedures and decorum, abuse of power and conduct unbecoming of a Judicial Officer and thereby rendered yourself liable to be punished under the Tamil Nadu Civil Services (Discipline and Appeal) Rules".
On 08.12.2003 the petitioner submitted a written statement of defence. Thereafter Hon'ble Mr. Justice M.Karpagavinayagam was appointed as the Enquiring Judge by the Administrative Committee High Court, Madras. An enquiry was held in which fourteen witnesses were examined by the Presenting Officer and thirty-two exhibits were marked. The petitioner got himself examined as D.W.1 and marked eight documents besides filing written statement and written submissions. In his report, dated 10.05.2004, the Enquiring Judge, as above said, found Charge Nos.1, 5 and 6 and the first part of Charge No.2 relating to disparaging comments said to have been made by the petitioner against the Hon'ble Judges of the High Court in open Court not proved. But the second part of Charge No.2 relating to disparaging comments made against the Hon'ble Judges of the High Court in his chamber and Charge Nos.3 and 4 relating to demand of bribe from Ramadoss and discussing the merits of the case with him were found proved. Thereafter the Administrative Committee of the High Court considered the findings of the Enquiring Judge on 21.06.2004 and came to the conclusion that a prima facie case is made out to issue a show cause notice to the petitioner. Accordingly, a second show cause notice dated 22.06.2004 was issued to the petitioner in R.O.C.No.48/2002-Con.B2 by enclosing a copy of the findings of the Enquiring Judge, calling upon him to show cause as to why he should not be dismissed from service basing upon the report of the Enquiring Judge. The petitioner submitted his explanation dated 21.07.2004 to the show cause notice and the petitioner also submitted an additional explanation on 20.01.2005. The findings of the Enquiring Judge, further representation / reply submitted by the petitioner and the relevant records were considered by the Administrative Committee in the meeting held on 03.12.2004 and resolved as follows:-
"The Administrative Committee considered the explanation and the findings, and recommends for the removal from service of the Judicial Officer concerned".
Thereafter, the matter was placed before the Full Court and the Full Court after considering the above matter in its meeting held on 13.12.2004 resolved to accept the findings of the Enquiring Judge and resolved as follows:-
"It is resolved to accept the report of the Honourable Mr. Justice M.Karpagavinayagam and further resolved to recommend to the State Government for the dismissal of the Judicial Officer concerned."
3. Pursuant thereto the second respondent forwarded all connected records to the Government of Tamil nadu. The Government of Tamil nadu after an independent examination of the records pertaining to the disciplinary proceedings decided to accept the recommendation of the High Court, Madras, for imposing the punishment of "dismissal from service" on the petitioner and accordingly the Government of Tamil Nadu issued G.O.Ms.No.360 Public (Special-A) Department dated 08.04.2005 imposing the penalty of "dismissal from service" on the petitioner. Against the said order of dismissal the above writ petition has been filed.
4. The learned senior counsel appearing for the petitioner put forth the following contentions:-
(A) The report of the Enquiring Judge was not supplied to the petitioner before its consideration by the Administrative Committee of the High Court. The Administrative Committee without granting the petitioner an opportunity of filing a reply and without considering the said reply had arrived at the finding that the petitioner was guilty of the charges. It was thereafter that the report was forwarded along with the Official Memorandum dated 22.06.2004 and the petitioner was called upon to show cause as to why he should not be dismissed from service on the basis of the enquiry report. The opportunity given to the petitioner was not to show cause against the findings in the report but to show cause against the proposed penalty. In the impugned order of dismissal dated 08.04.2005 it has been stated that the representation submitted had been considered again and the Administrative Committee resolved to impose the penalty of removal from service. The Full Court had resolved to accept the findings of the Hon'ble Enquiring Judge and decision of the Administrative Committee and resolved to recommend imposition of the punishment of dismissal from service. According to the learned senior counsel, the procedure followed is contrary to the law laid down by the Supreme in the case of Managing Director, ECIL Vs. B.Karunakar (AIR 1994 SC 1074). The Full Court may authorise the Hon'ble Chief Justice to constitute a committee of Judges for disciplinary matters and the decision of the committee will be treated as a decision of the Full Court. However, where the enquiry has been conducted by a Judge and not by the Administrative Committee, the Enquiring Judge cannot be treated as the Disciplinary Authority. The Enquiring Judge will only be a delegate of the Disciplinary Authority and cannot be equated to the High Court as provided in Article 235 of the Constitution. The Administrative Committee should have forwarded the enquiry report to the petitioner and should have considered the report only after the petitioner was given an opportunity to reply. By the procedure followed, it is clear that the Hon'ble Administrative Committee even before considering the reply had arrived at a decision that the petitioner was guilty. The opportunity to show cause which was granted was not against the enquiry report but against the punishment of dismissal that was proposed. By relying on the decision of the Hon 'ble Supreme Court rendered in the case of Hindustan Petroleum Corporation Limited Vs. H.L.Trehan (1989) 1 SCC 764 it is submitted that once a decision has been taken, there is a tendency to uphold it and a post decisional hearing will not sub-serve the rules of natural justice. The consideration of the reply of the petitioner by the Administrative Committee after the decision to impose punishment was violative of the principles of natural justice. In support of the above contentions, the learned senior counsel relied upon the decision reported in AIR 1999 SC 3734 (Yoginath D.Bagde Vs. State of Maharashtra) wherein in paragraph 36 the Apex Court has observed as follows:-
36. Along with the show-cause notice, a copy of the findings recorded by the Enquiry Officer as also the reasons recorded by the Disciplinary Committee for disagreeing with those findings were communicated to the appellant but it was immaterial as he was required to show-cause only against the punishment proposed by the Disciplinary Committee which had already taken a final decision that the charges against the appellant were proved. It was not indicated to him that the Disciplinary Committee had come only to a tentative decision and that he could show cause against that too. It was for this reason that the reply submitted by the appellant failed to find favour with the Disciplinary Committee.
(B) According to the learned senior counsel the complaint of the Bar Association which forms the subject matter of Charge No.2 was motivated. In the first representation dated 28.05.2002 (Ex.P-20) allegations regarding the alleged nexus between the petitioner and the Public Prosecutor and the alleged favouritism shown to the members of the rival association headed by the Public Prosecutor alone have been stated and transfer of the petitioner was sought for. But in Ex.P-16 the second representation dated 04.06.2002 the further allegation namely the disrespectful and disparaging remarks said to have been made by the petitioner against the Hon'ble Judges of the High Court have been added which will show that the said allegation regarding disrespectful remarks was added with mala fide and ulterior motive. Even in the resolution passed by the Bar Association Ex.P-31 dated 03.06.2002 there was no reference to the said allegation. According to the learned senior counsel the witnesses are biased and motivated and P.Ws.7 to 9 are all office bearers of the association and some of them have deposed that the disrespectful comments said to have been made by the petitioner were in Tamil while the others have deposed that they were in English. Learned senior counsel further submitted that since the complaint by the Bar Association was motivated and without basis the same does not deserve any credit. In support of the above said contentions, the learned senior counsel relied upon the following decisions:-
(a) 1988 (3) SCC 370 (Ishwar Chand Jain Vs. High Court of P. and H.)
(b) AIR 1999 SC 3734 (Yoginath D.Bagde Vs. State of Maharashtra)
(c) 2004 (3) L.W. 230 (S.Thirupathy Vs. State of Tamil Nadu and another).
In 1988 (3) SCC 370 (referred to supra) in paragraph 14 the Apex Court has observed as follows:-
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 moffusil 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 constant threat of complaint and enquiry on trifling matters and if High Court encourages anonymous 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 Shri Mehlawat and others were motivated which did not deserve any credit.
In AIR 1999 SC 3734 (referred to supra) in paragraph 51 the Apex Court has observed as follows:-
Under Article 235 of the Constitution, the High Court has a duty to protect the officers of the subordinate judiciary from unscrupulous litigants and lawyers. In Ishwar Chand Jain Vs. High Court of Punjab and Hariyana, AIR 1988 SC 1395 : (1988 Lab IC 1651), it was, inter alia, observed that the High Court while exercising its power of control over the subordinate judiciary is under a Constitutional obligation to guide and protect judicial officers. It was further observed that an honest and strict judicial officer is likely to have adversaries in the mofussil Courts; if trifling complaints relating to judicial orders which may have been upheld by the High Court on the judicial side are entertained, no judicial officer would feel protected; and it would be difficult for him to discharge his duties honestly and independently. It is, therefore, imperative for the High Court to protect its honest judicial officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. In 2004 (3) L.W. 230 (referred to supra) in paragraph 8 it is observed as follows:-
8. ... In a judicial review, normally, appreciation of evidence is not resorted to. But, when the failure on the part of the authority to look into the material facts or evidence, which cut at the roots of the allegation and that too, a serious one like in the instant case, and the disciplinary proceeding being quasi-judicial in nature, not only should there be reasons, but those reasons should have supporting material. If the litigants, who suffer adverse decisions from the Judge, who handed out the judgments are allowed to have their say in this manner, it is very difficult for the judicial officers to sustain. As already stated above, we have to balance the severity of the allegations with that of sustaining the independence of judiciary, and only when the evidence is so overwhelming and beyond all reasonable doubts that the judicial officer can be inflicted punishment. The analysis of the evidence, which has not been done by the enquiry committee and the vital contradictions not having been considered and there being non-existent facts, we find that the charges 3 and 4 levelled against the petitioner are also unsustainable. The learned senior counsel submitted that the above said vital contradictions in the evidence have not been considered by the Enquiring Judge in the light of the law laid down by the Apex Court and according to the learned senior counsel the findings recorded are such to which no reasonable person would have reached and therefore the finding warrants interference by this Court.
(C) As the Special Officer, Vigilance Cell, High Court, Madras, in his final report dated 08.07.2002 had found that there is no evidence for connecting the petitioner with the Public Prosecutor-Mr. Pitchai Pillai to prove the deal in between them found that the allegation could not be substantiated and therefore, the said finding was accepted by the High Court as is evident from Charge No.2 which does not contain any allegation regarding purported nexus between the Public Prosecutor and the petitioner. While so, in the enquiry report, the Enquiry Judge has found as follows:-
"Though the Vigilance Officer dropped the charge relating to the sharing of the bribe amount the deal between the P.D.J. and the Public Prosecutor on the reason that there are no sufficient materials to establish the same, the same would not prevent this Forum from analyzing the materials available on record which would show that the P.D.J. defended the corrupt activities of Public Prosecutor who received the bribe for himself and on behalf of P.D.J by justifying his acts through quoting the alleged corrupt activities of even the High Court Judges".
According to the learned senior counsel there cannot be an enquiry into allegations with which the charge sheeted officer had not been charged with and when the alleged nexus with the Public Prosecutor had been dropped the same could not have been enquired into without framing appropriate charges and therefore the inferences drawn in respect of these allegations have vitiated the findings in respect of Charge No.2. In support of the above said contentions, the learned senior counsel relied upon the decisions reported in AIR 1955 SC 271 (Dhirajlal Vs. I.T. Commr., Bombay) and (2006) 5 SCC 88 (M.V.Bijlani Vs. Union of India). In AIR 1955 SC 271 (referred to supra) in paragraph 5 the Apex Court has observed as follows:-
"5. .... It is well established that when a Court of fact acts on material, partly relevant and partly irrelevant, it is impossible to say to what extend the mind of the Court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material and thereby an issue of law arises".
In the decision reported in (2006) 5 SCC 88 (referred to supra) it is observed as follows:-
"23. Evidently, the evidences recorded by the enquiry officer and inferences drawn by him were not commensurate with the charges. If it was a case of misutilisation or misappropriation, the appellant should have been told thereabout specifically. Such a serious charge could not have been enquired without framing appropriate charges. The charges are otherwise vague. We have noticed hereinbefore that the High Court also proceeded on the basis that the non-maintenance of diary amounted to misutilisation of copper wire.
24. ....
25. .... He cannot enquire into the allegations with which the delinquent officer had not been charged with. (D) Learned senior counsel for the petitioner submitted that Charge Nos.3 and 4 are not substantiated by credible evidence and the findings on the said charges are vitiated as the Enquiring Judge has failed to consider relevant materials on record and relied upon irrelevant materials. The learned senior counsel by referring to the following observations contained in the findings of the Enquiring Judge, viz., 'further, P.W.6 would state that he submitted his written submission before the P.D.J. in A.S.No.77 of 2001. This is not denied. But, the perusal of the judgment Ex.P2 rendered on 30.4.2002 would show that the delinquent officer has not chosen to refer to the written submission presented by him on behalf of P.W.1 in the judgment. I have also gone through both the trial Court judgment Ex.P1 in O.S.112 of 1999 and also the appellate court judgment Ex.P2 in A.S.No.77 of 2001. Though I am not expected to give any opinion on the judgment rendered by P.D.J. I cannot but record my disapproval over the manner in which the judgment in A.S.No.77 of 2001 in written. However, less said about this is better', submitted that the Enquiring Judge ought not to have gone through the judgment in Ex.P-2 rendered in A.S.No.77 of 2001 while considering the charge Nos.3 and 4 and according to the learned senior counsel the correctness of Ex.P-2-judgment could be gone into only by the Appellate Forum and not by the enquiring Judge and thus it is clear that the said observation of the enquiring Judge has indirectly influenced the mind of the enquiring Judge in rendering an adverse finding on charge Nos.3 and 4.
(E) The learned senior counsel for the petitioner further submitted that there are glaring inconstancies in the evidence of P.W.1 and P.W.6, while P.W.1 stated that he met the petitioner along with Senthamarai Kannan-P.W.6, P.W.6 has stated before the Special Officer that his father had met the petitioner with the client P.W.1. and before the enquiring Judge, P.W.6 stated that all three were present. P.W.6's father-V.Ramamoorthy has stated that he had taken the client to meet the District Judge and again with respect to the meeting on 02.04.2002, P.W.6 has stated before the Special Officer that he had taken the client to the chamber and came out after the petitioner informed that he would talk privately to the party. P.W.6 in his evidence before the Enquiring Judge stated that he did not go into the chamber but that the client alone went in but the above said material contradictions have not been considered by the Enquiring Judge. Learned senior counsel further submitted that P.W.1's wife was the respondent in A.S.No.77 of 2001 and the said appeal was allowed and decided against P.W.1's wife and therefore P.W.1 was a disgruntled litigant. As P.W.1 happens to be the husband of a litigant who lost her case, naturally he would have nurtured a grievance against the petitioner and his grave allegation that the petitioner demanded bribe is unworthy of acceptance in the light of the law laid down by the Apex Court in a number of cases. Learned senior counsel further pointed out that no complaint whatsoever has been sent by P.W.1 immediately after the judgment was delivered in the appeal but had chosen to wait for nearly two months to appear before the Special Officer Vigilance to give his statement. Though the judgment was delivered on 30.04.2002 P.W.1 has spoken to about the alleged demand of bribe for the first time before the Special Officer only on 23.06.2002. As the wife of P.W.1 has lost the case P.W.1's evidence ought not to have been accepted. He further submitted that on 27.03.2002 pursuant to the telegram (Ex.D-2) the petitioner has called the counsel for the respondent to find out the genuineness of the telegram. Again on 01.04.2002 another telegram (Ex.D-3) was received and hence once again the petitioner enquired into the same. On 08.04.2002 the petitioner had written a letter (Ex.D-5) to the High Court and the High Court by Official Memorandum dated 21.02.2002 (Ex.D-6) directed the petitioner to pronounce the judgment and the telegrams of such nature should be ignored and only thereafter the petitioner had delivered the judgment in the appeal. The copies of the said telegrams have also been sent to the High Court. When the petitioner had called P.W.1 and the counsel for the respondent to the chamber not once but twice and had obtained a written memo signed by both the parties and their respective counsel expressing confidence in the petitioner and had also brought the receipt of telegrams to the notice of the High Court it is unthinkable that the petitioner would have made such a demand for bribe as alleged and further it is submitted that if indeed the demand of bribe had been made to P.W.1 who is admittedly the State President of Tamil Nadu Electricity Consumer Society he would not have kept quiet and that too without informing P.W.6 who was waiting outside the chamber of the Judge. P.W.6 in his cross-examination has admitted that he had questioned P.W.1 after he had come out of the Judge's chamber and P.W.1 had stated that the Judge had asked him only about the telegram and he had stated that he had not sent any telegram. But P.W.6 had not deposed that P.W.1 informed him about the alleged demand for bribe made by the petitioner. He would further submit that if there had been a demand of bribe he would have informed the same to his counsel P.W.6 and P.W.1 would not have expressed his faith in the Judge and filed a Memo. Learned senior counsel further submitted that the conduct of P.W.1 does not appear to be that of an ordinary prudent person and these relevant and material facts have not at all been considered by the Enquiring Judge and therefore the findings are liable to be set-aside.
(F) Learned senior counsel alternatively submitted that the punishment of dismissal from service imposed on the petitioner is grossly disproportionate and harsh. Learned senior counsel further submitted throughout his service the reputation of the petitioner relating to his honesty, integrity and impartiality have been found to be good and no adverse entries have been made in this respect in his annual confidential reports. He further submitted that the petitioner in the normal course would have reached the age of super-annuation on 21.05.2005 but he was dismissed from service on 08.04.2005 and taking that into consideration a lesser punishment may be imposed. In support of the said submissions, the learned senior counsel relied upon the decisions reported in 2003 (11) S.C.C. 741 (Chandra Vilash Rai Vs. State of Bihar and others), A.I.R. 1991 S.C. 1241 (V.R.Katarki Vs. State of Karnataka and others) and the order of a Division Bench of this Court dated 08.10.2001 passed in W.P.No.92 of 1998 (A.Ramasswamy Vs. State of Tamil Nadu and two others).
5. Per contra Mr. P.S.Raman learned Additional Advocate General submitted that pursuant to the resolution of the full Court, the Hon'ble Chief Justice had constituted different committees to deal with different subjects and one such committee is the Administrative Committee consisting of the Hon'ble Chief Justice and six other senior Judges which was authorised to deal with service conditions and disciplinary matters of judicial officers and others among other matters. The decision of the administrative committee on dismissal, removal, compulsory retirement and amendment to service rules will be placed before the full Court. He further submitted that the administrative committee in its meeting held on 07.08.2003 resolved to appoint the Hon'ble Mr. Justice M.Karpagavinayagam as enquiring Judge to conduct the departmental enquiry against the petitioner, the finding of the Enquiring Judge was considered by the administrative committee in its meeting held on 21.06.2004 and as the committee was of the opinion that a prima facie case has been made out decided to issue a second show cause notice to the petitioner seeking explanation as to why he should not be dismissed from service and accordingly the show cause notice was issued enclosing a copy of the report of the enquiring Judge and the petitioner submitted his further representations / explanation to the show cause notice and the same were considered by the administrative committee in its meeting held on 03.12.2004 and resolved to recommend for the removal from service of the petitioner. Thereafter the matter was placed before the full Court and the full Court after considering the above matter in its meeting held on 13.12.2004 resolved to accept the findings of the Enquiring Judge and further resolved to recommend to the State Government for dismissal of the petitioner. He further submitted that the domestic enquiry in this case was not conducted by any other authority other than the Disciplinary Authority as contended by the petitioner. The Administrative Committee had nominated Mr. Justice M.Karpagavinayagam a sitting Judge of the High Court as the enquiring Judge and as such it could not be contended that the enquiry has been conducted by an authority other than the disciplinary authority since the enquiring Judge is part and parcel of the High Court viz., the Full Court which is the disciplinary authority. Therefore the learned Additional Advocate General submitted that the contention of the learned senior counsel for the petitioner that since the enquiry had been conducted by a Hon'ble Judge of the High Court and not by the administrative committee the enquiring Judge cannot be treated as the disciplinary authority cannot be accepted. For the said reasons, the learned Additional Advocate General submitted that, the decision reported in A.I.R.1994 S.C. 1974 (referred to supra) is not applicable to the facts of this case and there is no necessity to forward the findings of the Enquiring Judge to the petitioner before the same was considered by the administrative committee. He further submitted that along with the second show cause notice the findings of the enquiring Judge was furnished to the petitioner and thereafter his reply / explanation was obtained and that was considered by the administrative committee and only thereafter the administrative committee decided to resolved to impose the punishment of removal from service and subsequently the matter was placed before the Full Court and the Full Court resolved to accept the findings of the enquiring Judge and further resolved to impose the punishment of dismissal from service and therefore according to the learned Additional Advocate General all the procedural formalities have been strictly complied with and no exception can be taken. He further submitted that even assuming that the contention of the petitioner is acceptable that alone cannot be a ground to set-aside the impugned proceedings as the petitioner had not pleaded in his explanation submitted to the second show cause notice that any prejudice has been caused to him and infact no prejudice is shown to have been caused to the petitioner by the failure to furnish the copy of the findings of the Enquiring Judge and give an opportunity to the petitioner to submit his explanation on the findings before the findings of the Enquiring Judge was considered by the administrative committee. In support of the said contentions he relied upon the observation of the Apex Court contained in paragraphs 26 and 27 of the judgment reported in 2007 (4) S.C.C. 54 (Ashok Kumar Sonkar Vs. Union of India) which read as follows:-
"26. This brings us to the question as to whether the principles of natural justice were required to be complied with. There cannot be any doubt whatsoever that the audi alteram partem is one of the basic pillars of natural justice which means no one should be condemned unheard. However, whenever possible the principle of natural justice should be followed. Ordinarily in a case of this nature the same should be complied with. Visitor may in a given situation issue notice to the employee who would be affected by the ultimate order that may be passed. He may not be given an oral hearing, but may be allowed to make a representation in writing.
27. It is also, however, well settled that it cannot put any straitjacket formula. It may not be applied in a given case unless a prejudice is shown. It is not necessary where it would be a futile exercise".
The learned Additional Advocate General submitted that before the final decision was taken by the Full Court, since an opportunity, as above said, was given to the petitioner, no prejudice whatsoever has been caused to the petitioner and therefore the impugned proceedings is not vitiated in any manner.
6. Since an important question of law touching upon the legality of the decision making process in imposing the punishment of dismissal from service of a District Judge is raised in this case, we thought it fit to have the assistance of the learned Advocate General and accordingly the learned Advocate General assisted the Court as an amicus curiae. Learned Advocate General submitted that though the enquiry in this case had been conducted by a Hon'ble Judge of the High Court, who was nominated by the administrative committee, the findings of the Enquiring Judge were first considered by the administrative committee and on a tentative decision being taken the second show cause notice was issued giving an opportunity to the petitioner to submit his explanation and thereafter the administrative committee on a consideration of the entire materials on record resolved to accept the findings of the Enquiring Judge and decided about the nature of punishment to be imposed and thereafter the matter was placed before the Disciplinary Authority, namely the High Court, (the High Court means the Full Court) and the Full Court had resolved to accept the findings of the Enquiring Judge and further resolved to dismiss the petitioner from service; therefore, the final decision is neither that of the Enquiring Judge nor that of the administrative committee but is that of the Full Court, namely, the Disciplinary Authority; the High Court is an institution and as such the decision taken by the High Court as the Disciplinary Authority is an institutional decision. According to the learned Advocate General in an institutional decision one person can hold an enquiry or a hearing and another person can decide the matter and it is not necessary that the person who decides must have himself heard the person affected. In support of his above said submissions, the learned Advocate General drew our attention to the following passages found at pages 502 and 503 of the Book Principles of Administrative Law" by Jain & Jain:-
An institutional decision negates the doctrine One who decides must hear. Decisions are 'institutional' because the decision as a whole is that of the concerned department as an administrative entity rather than the personal decision of any designated officer individually. In an institutional decision, no one individual officer hears the party personally and decides the case himself as a judge does. Usually, one official hears the party concerned; he may take the decision in the name of the government if he is authorised to do so. If not so authorised, he submits the record of hearing to the higher officer for his taking the decision, again, in the name of the government. A situation of institutional decision comes into existence when the decision making power is conferred on an institution, such as, government, or a department, or a Minister, and not on a designated official specifically. For example, when decision-making power is conferred by law on a Minister, it does not mean that the Minister himself personally applies his mind to the matter and arrives at a decision. What it means is that the decision is arrived at either by the Minister himself, or by some one else in his department for whom the Minister is constitutionally responsible.
A decision by a department differs from the decision by a designated official, body or tribunal created exclusively for adjudication, for while in the latter case the discretion exercised and the views taken are of the specified authority itself, in the former case, the decision is that of the department as a whole and represents the cumulative wisdom of a number of anonymous officials through whose hands the file of the case may pass, and in this sense it is institutional and not a personal or an individual decision of one person. Learned Advocate General further submitted that as early as 1914, in the famous case of Local Government Board Vs. Arlidge (1915) AC 120, the House of the Lords upheld the validity of an institutional decision and the decision came up for consideration in R. Vs. Commission for Racial Equality, exparte Cottrell and Rothon (1980) 3 All England Reports 265 and in that decision the effect of the decision has been summarised as follows:-
The effect of Arlidge has been manifold, viz. : (1) It is not necessary to identify or individualize the very official in the department who actually makes the decision in a given case. (2) The department concerned can deal with the matter in the usual departmental routine in which it deals with any other administrative matter, but it must fairly listen to both sides. (3) It is not necessary to disclose the enquiry report to the party concerned. (4) One person can hold an enquiry or a hearing and another person can decide the matter. (5) It is not necessary that the person who decides must have himself heard the person affected.
7. Mr. P.S.Raman learned Additional Advocate General submitted that the scope of judicial review under Article 226 of the Constitution of India in the matter of disciplinary proceedings is very very limited and submitted that unless the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such, to which no reasonable person would have reached, it would not be open to the High Court to interfere in the matter. He further submitted that as far as Charge No.2 is concerned, since only on an elaborate consideration of the evidence on record the Enquiring Judge has rendered a finding that the second part of Charge No.2 is proved this Court cannot re-appreciate the evidence and come to a different conclusion. He further contended that the contradictions pointed out by the learned senior counsel for the petitioner are not material in nature and even otherwise it cannot be said that the findings of the enquiring Judge are perverse or no reasonable person would have reached such a finding. He submitted that P.Ws.7 to 10, 12 and 13 are all practising advocates who have spoken to about the disparaging remarks made by the petitioner against the Hon'ble Judges of the High Court and of them P.Ws.7 to 10 are the office bearers of the Bar Association and they have absolutely nothing personal against the petitioner and as such the enquiring Judge was right in believing their evidence and holding that the second part of Charge No.2 is proved. He further submitted that the fact that the said witnesses have not spoken in support of the first part of Charge No.2 itself will show that their evidence is trust-worthy and reliable. As far as the submissions made by the learned senior counsel for the petitioner regarding the findings recorded by the Enquiring Judge on Charge Nos.3 and 4 are concerned, the learned Additional Advocate General submitted that as the findings are based on the evidence on record and recorded after an elaborate consideration and appreciation of the evidence of P.Ws.1 and 6 and the relevant documents the same cannot be interfered with by re-appreciating the evidence of P.Ws.1 and 6. He further submitted that the enquiring Judge has given acceptable reasons for believing the sole evidence of P.W.1 regarding the discussion which the petitioner had with P.W.1 on the merits of the case and the demand for bribe made to P.W.1. According to the learned Additional Advocate General the findings of the enquiring Judge cannot be termed as perverse. In support of the above said contentions, the learned Additional Advocate General relied upon the observation of the Apex Court contained in paragraph 53 of the judgment reported in A.I.R.1999 SC 3734 (Yoginath D.Bagde Vs. State of Maharashtra and another) which reads as follows:-
"53. ..... The law is well-settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. ....".
He also relied upon the observation of the Apex Court contained in paragraph 18 of the judgment reported in A.I.R.1997 SC 2631 (High Court of Judicature of Bombay Vs. Shirish Kumar R.Patil) which reads as follows:-
"18. It is seen that at the inception the advocate of the plaintiff had not alleged that the respondent had demanded illegal gratification for rendering judgment in favour of his client to grant ad interim injunction. Indisputably, the advocate had no axe to grind against the delinquent officer nor could he gain from any unfair advantage. In the absence of any demand of illegal gratification, a different view might be possible. Yet, it being in the realm of appreciation of evidence and reach its own conclusion on the sufficiency of evidence or on the correctness of the conclusion which is based on same evidence. Apart from this, during cross-examination, the omission was put to the advocate and he explained the reasons for the omission, i.e., he was not interested to have the respondent punished and was interested only in early orders. That explanation was accepted by the Enquiry Officer and he gave reasons in support thereof. The High Court also examined this contention and accepted the explanation. Under these circumstances, being in the realm of appreciation of evidence, this Court cannot by itself, appreciate evidence, and reach a conclusion different from that of the Disciplinary Authority. Allegation of bias also is not warranted on the facts. When we asked the counsel whether any allegation of bias was made at the inception of the enquiry against the Enquiry officer, he candidly admitted that no such allegations were made. The allegations came to be made for the first time in the reply to the show cause notice issued by the High Court. It would, therefore, be obvious that it is an afterthought attempt to get over the report of the Enquiry Officer. The charges were framed by the High Court and communicated to the Enquiry Officer. In the enquiry report, he merely posed questions that arose for decision, in a manner different from the wording used in the charges but it is a way of expression in considering the issue. It is not a sign to show that the enquiry officer was biased or that he was prejudiced against the respondent. Thus we hold that the Charge No.1 stands established from the evidence on record. In that view of the matter, it is not necessary to go into other charges."
8. The learned Additional Advocate General submitted that as pointed out by the enquiring Judge the petitioner himself as D.W.1 had admitted that there was no enmity between him and the members of the Bar or between him and the office bearers of the association and as such there is nothing wrong in accepting the testimony of the advocates as they had no personal grudge against the petitioner. He, by referring to the submission of the learned senior counsel for the petitioner that there cannot be an enquiry into allegations with which the charge sheeted officer had not been charged with, submitted that the enquiring Judge had not enquired into any allegations in respect of which no charge has been framed but the learned Judge only in the course of considering the contentions put forth by the petitioner had made the observation referred to by the learned senior counsel for the petitioner. He further submitted that the facts of the case relating to the decisions reported in A.I.R. 1955 SC 271 (referred to supra) and 2006 (5) SCC 88 (referred to supra) are totally different from the facts of the case on hand and as such the law laid down therein is not applicable to the facts of this case. He further submitted that since the charges proved against the petitioner are so serious no lenient view can be taken and the punishment imposed on the petitioner cannot be interfered with.
9. We have carefully considered the submissions made by the learned counsel on either side and all the materials available on record. The contention of the learned senior counsel for the petitioner, since the enquiry has been conducted by a Hon 'ble Judge and not by the administrative committee, the Enquiring Judge cannot be treated as the disciplinary authority, is liable to be rejected for the following reasons:-
(i) In (AIR 1994 SC 1074) (referred to supra) the Apex Court has held that when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report, before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee to the charges levelled against him. Only by drawing sustenance from the above said observation of the Apex Court, the above contention has been put forth by the learned senior counsel. Therefore the crucial question that has to be decided is whether the enquiry officer in this case is not the disciplinary authority or otherwise whether the Enquiring Judge can be treated as the disciplinary authority. The learned senior counsel himself has conceded that the Full Court may authorise the Hon'ble Chief Justice to constitute a committee of Judges for disciplinary matters and the decision of the committee will be treated as a decision of the Full Court. At this juncture it will be useful to refer to the decision of the Apex Court reported in A.I.R.1997 S.C.2631 = 1997 (6) S.C.C. 339 (referred to supra). In that case the Apex Court found on a consideration of various resolutions adopted by the Bombay High Court that the Full Court having itself authorised the Chief Justice to constitute a Committee of Judges for disciplinary matters, whatever decision was taken by the Committee was treated to be a decision of the Full Court. The Apex Court in paragraphs 10 and 11 of the report observed as under:
"10. It would thus be settled law that the control of subordinate judiciary under Article 235 is vested in the High Court. After the appointment of the judicial officers by the Governor, the power to transfer, maintain discipline and keep control over them vests in the High Court. The Chief Justice of the High Court is first among the Judges of the High Court. The action taken is by the High Court and not by the Chief Justice in his individual capacity, nor by the Committee of Judges. For the convenient transaction of administrative business in the Court, the Full Court of the Judges of the High Court generally passes a resolution authorising the Chief Justice to constitute various committees including the committee to deal with disciplinary matters pertaining to the subordinate judiciary or the ministerial staff working therein. Article 235, therefore, relates to the power of taking a decision by the High Court against a member of the subordinate judiciary. Such a decision either to hold an enquiry into the conduct of a judicial officer, subordinate or higher judiciary, or to have the enquiry conducted through a District or Additional District Judge etc. and to consider the report of the enquiry officer and to take follow-up action and to make appropriate recommendation to the Disciplinary Committee or to the Governor, is entirely of the High Court which acts through the Committee of the Judges authorised by the Full Court. Once a resolution is passed by the Full Court of the High Court, there is no further necessity to refer the matter again to the Full Court while taking such procedural steps relating to control of the subordinate judiciary.
11. It is true that a resolution came to be passed authorising the Committee of five Judges to deal with imposition of punishment on judicial officers. The question, therefore, is whether it requires the Chief Justice and the Committee to initiate disciplinary proceedings. The "delegation of the function of the High Court in respect of punishment of judicial officers" is an exception of width and of wide amplitude to cover within its ambit the power to take a decision by the Committee from the stage of initiation of disciplinary proceedings, if necessary, till its logical end, viz. recommendation is by the High Court, the controlling authority under Article 235 of the Constitution. Therefore, it is difficult to accept the contention of Shri Batra that the delegation is only for imposition of punishment on judicial officers. In fact, the High Court has no power to impose any punishment by itself. The appointing authority, viz., the Governor is the competent authority under the Constitution to impose punishment in accordance with the rules framed for the purpose. Therefore, the entire gamut of procedural steps of disciplinary action is by the High Court which is the controlling authority through the Committee constituted in that behalf by the Chief Justice of the High Court".
A reading of the above said observations of the Apex Court makes it crystal clear that a decision either to hold an enquiry into the conduct of a judicial officer, subordinate or higher judiciary, or to have the enquiry conducted under a District or Additional District Judge etc. and to consider the report of the enquiry officer and to take follow-up action and to make appropriate recommendation is entirely of the High Court which acts through the Committee of the Judges authorised by the Full Court. The delegation of the function of the High Court in respect of disciplinary matters is an exception of width and of wide amplitude to cover within its ambit the power to take a decision by the Committee from the stage of initiation of disciplinary proceedings, if necessary, till its logical end. Therefore the appointment of Hon'ble Mr. Justice M.Karpagavinayagam as the Enquiring Judge by the administrative committee should be construed to be the decision of the Full Court. In this case, as pointed out above, the Hon'ble Chief Justice has constituted the Administrative Committee consisting of the Hon'ble Chief Justice and six other senior Judges; the Administrative Committee had nominated Mr. Justice M.Karpagavinayagam as the Enquiring Judge. The Enquiring Judge who is admittedly a sitting Judge of the High Court is a constituent of the Full Court which is the disciplinary authority namely the High Court and by no stretch of imagination it could be said that the Enquiring Judge is an outsider; since the enquiry itself cannot be conducted by the entire Full Court, the Administrative Committee came to be constituted which admittedly consisted of seven Hon'ble senior Judges (including the Hon'ble the Chief Justice). Only in view of the difficulty in conducting the enquiry by the Administrative Committee itself, the administrative committee had nominated one of the Hon'ble Judges namely Hon'ble Mr. Justice M.Karpagavinayagam as the Enquiring Judge and therefore simply because the administrative committee had nominated a sitting Judge as the Enquiring Judge it can neither be said that the Enquiring Judge ceases to be a constituent of the Full Court nor it can be said that the Enquiring Judge is other than the disciplinary authority. As rightly contended by the learned Advocate General the decision taken in this case is an institutional decision and not a personal decision or an individual decision of one Hon'ble Judge or that of the administrative committee and therefore one Hon'ble Judge can hold an enquiry or a hearing and another body of the Judges namely the administrative committee can take a tentative decision in the matter. In an institutional decision, the decision is that of the institution as a whole and represents the cumulative wisdom of a number of anonymous officials through whose hands the file of the case may pass, and in this sense it is institutional and not a personal or an individual decision of one person. Further in an institutional decision one person can hold an enquiry or a hearing and another person can decide the matter and it is not necessary that the person who decides must have himself heard the person affected. Therefore the contention of the learned senior counsel for the petitioner that before the findings of the Enquiring Judge was accepted by the administrative committee the petitioner should have been heard is not tenable. In this case before final decision was taken by the Full Court sufficient opportunity has been given to the petitioner by way of the second show cause notice and as such it cannot be said that there is any flaw in the decision making process or there is any procedural violation.
(ii) At this juncture we would like to point that as far as the disciplinary proceedings relating to the Civil Judges, both junior and senior divisions are concerned, the High Court normally appoints one of the District Judges as the enquiry officer and in such cases, before the findings of the enquiry officer is considered by the High Court, a copy of the findings of the enquiry officer is enclosed along with the show cause notice calling upon the delinquent officer to submit his explanation on the findings and only thereafter the evidence recorded by the enquiry officer, the findings of the enquiry officer and the explanation of the delinquent officer are considered by the High Court. Such a procedure is followed because in such cases the enquiry officer is not the disciplinary authority but as far as District Judges are concerned, the enquiry will be conducted by a sitting Judge of the High Court as nominated by the administrative committee and the sitting Judge is part and parcel of the Indistution viz., the High Court and therefore the contention of the learned senior counsel for the petitioner that the enquiring Judge cannot be treated as the disciplinary authority has to be rejected. Therefore, the applicability of the ratio laid down in (1989) 1 SCC 764 (referred to supra) does not arise for consideration in this case.
(iii) In A.I.R.1999 SC 3734 (referred to supra) the findings of the enquiry officer was in favour of the delinquent officer and the disciplinary committee disagreed with those findings without giving an opportunity of hearing to the delinquent officer and only in that context the Apex Court held as follows:-
"33. .... If the findings recorded by the Enquiry Officer are in favour of the delinquent and it has been held that the charges are not proved, it is all the more necessary to give an opportunity of hearing to the delinquent employee before reversing those findings. The formation of opinion should be tentative and not final. It is at this stage that the delinquent employee should be given an opportunity of hearing after he is informed of the reasons on the basis of which the Disciplinary Authority has proposed to disagree with the findings of the Enquiry Officer."
But in the case on hand, the Enquiring Judge has found the delinquent officer / petitioner guilty in respect of three of the charges framed against him and the disciplinary authority namely the High Court has agreed with those findings and therefore the necessity to give an opportunity to the petitioner at that stage does not arise.
10. Now we take up for consideration the contention of the learned senior counsel for the petitioner that there cannot be an enquiry into allegation with which the charge sheeted officer had not been charged with and when the alleged nexus with the Public Prosecutor has been dropped the same could not have been enquired into without framing appropriate charges and therefore the inferences drawn in respect of these allegations have vitiated the findings in respect of Charge No.2. At the outset it has to be pointed out that the Enquiring Judge had not enquired into allegations with which the charge sheeted officer had not been charged with and no finding has been rendered in respect of a charge which has not been framed. In the course of considering Charge No.2 the Enquiring Judge had to consider the contentions put forth by the petitioner-the delinquent officer and only in the course of discussing the materials available on record and the evidence tendered before the Enquiring Judge the said observations came to be made by the Enquiring Judge but no adverse finding has been recorded against the delinquent officer in the absence of a charge. It is pertinent to point out that the facts of the cases reported in AIR 1955 SC 271 (referred to supra) and (2006) 5 SCC 88 (referred to supra) are totally different and therefore the ratio laid down therein are not applicable to the facts of this case. Hence, we are of the considered view that the Enquiring Judge has not taken into consideration any irrelevant material in arriving at the findings relating to Charge No.2 and therefore the above contention of the learned senior counsel is liable to be rejected.
11. After referring to a catena of decisions in AIR 1999 SC 3734 (referred to supra) the Apex Court in paragraph 53 has observed as follows:-
"53. .... although the Court cannot sit in appeal over the findings recorded by the Disciplinary Authority or the Enquiry Officer in a departmental enquiry, it does not mean that in no circumstance can the Court interfere. It was observed that the power of judicial review available to a High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and the Courts can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse".
It is also settled law that if the enquiry officer in a departmental enquiry had relied upon irrelevant material and such reliance on the irrelevant material has in any way influenced the mind of the enquiry officer in rendering a finding one way or other such a finding is amenable to judicial review. Similarly if relevant materials available on record are not taken into consideration by the enquiry officer, then also, the findings of the enquiring officer are amenable for judicial review. In the light of the above said legal principles the contention of the learned senior counsel for the petitioner relating to the findings of the Enquiring Judge have to be considered.
12. Since Charge Nos.3 and 4 are interlinked and related to a single transaction it is appropriate to consider the findings on Charge Nos.3 and 4 together. The Enquiring Judge on an elaborate consideration of the evidence on record has made the following observation in the report:-
"A perusal of the evidence of P.Ws.1 and 6 would make it clear that though P.W.6 was present in the first enquiry held in the chamber along with P.W.1, he did not choose to go inside for the second enquiry and as such, P.D.J. enquired P.W.1 alone separately inside the chamber. Therefore, the fact that P.W.1 was enquired by P.D.J. inside the chamber separately has been spoken to by both P.W.1 and P.W.6".
After making such an observation, the Enquiring Judge has also observed that P.W.1 alone is the competent witness to speak about the nature of conversation between P.D.J. and P.W.1 inside the chamber. The Enquiring Judge has also observed that P.W.6 did not state that P.W.1 told him about the demand of bribe and other things but that by itself would not be sufficient to reject the evidence of P.W.1. Therefore, it is clear that to prove Charge Nos.3 and 4 the evidence of P.W.1 alone is available, because the whole episode is alleged to have taken place inside the Chamber of the District Judge / petitioner and P.W.1 and the petitioner alone were inside the chambers. Admittedly P.W.1 is the husband of the respondent in A.S.No.77 of 2001. The petitioner has allowed the said appeal and as such P.W.1, being the husband of the respondent, is aggrieved and therefore he should be considered as a disgruntled litigant. When no other corroborative evidence is available and P.W.1 alone is the sole witness to speak about the alleged demand of bribe and about the discussion of the case on merits by the petitioner great care should be taken in scrutinizing P.Ws.1's evidence. In 1988 (3) SCC 370 (referred to supra) the Apex Court interalia observed that the High Court while exercising its power of control over the subordinate judiciary is under a Constitutional obligation to guide and protect judicial officers. It is further observed that an honest and strict judicial officer is likely to have adversaries in the mofussil Courts; if trifling complaints relating to judicial orders which may have been upheld by the High Court on the judicial side are entertained, no judicial officer would feel protected; and it would be difficult for him to discharge his duties honestly and independently; and it is, therefore, imperative for the High Court to protect its honest judicial officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. The above said legal principle has been followed in AIR 1999 SC 3734 (referred to supra) also. Though the learned senior counsel has elaborately argued referring to the contradictions in the evidence adduced before the Enquiring Judge, we are of the considered view that we cannot re-appreciate the evidence and come to a different conclusion. But the contention of the learned senior counsel, that as P.W.1 happens to be the husband of a litigant who lost her case, naturally, he would have nurtured a grievance against the petitioner and his grave allegation that the petitioner demanded bribe is unworthy of acceptance in the light of the law laid down by the Apex Court in a number of cases, cannot be slightly brushed-aside. Admittedly the judgment in A.S.No.77 of 2001 was delivered on 30.04.2002 whereas P.W.1 had chosen to wait for nearly two months to appear before the Special Officer, Vigilance to give his statement on 23.06.2002. Admittedly, no complaint whatsoever has been sent by P.W.1 immediately after the judgment was delivered in the appeal. Even P.W.6, who was standing outside the chamber of the District Judge when P.W.1 was clossetted with the District Judge in his chamber, had not stated in his evidence that P.W.1 told him about the demand of bribe and other things. If really the allegations made by P.W.1 are true, then he would have immediately on coming out of the chambers of the District Judge / petitioner would have informed the same to P.W.6. Admittedly P.W.1 is the State President of Tamil Nadu Electricity Consumer Society and as such he must be well-versed in Court proceedings and a man of knowledge and therefore such a person would not have kept quite without either sending a complaint to the High Court or asking his counsel to file a transfer petition to get the appeal transferred to some other Court but he had not chosen to take any such action Therefore it raises a grave doubt as to whether the petitioner would have made such a demand for bribe or discussed the merits of the case with P.W.1. The conduct of P.W.1 does not appear to be that of an ordinary prudent person. But these relevant and material facts have not at all been considered by the Enquiring Judge. Further it is relevant to point out that two telegrams have been received by the petitioner and on both those occasions he has called P.W.1 and his counsel to his chamber and on one occasion he has obtained a Memo signed by both the parties expressing confidence in the petitioner and the petitioner was aware that copies of the telegrams have been forwarded to the High Court also and in such circumstances it is unthinkable that the petitioner who was the senior District Judge would have either discussed the merits of the case with P.W.1 or made a demand for bribe. These material and relevant factors have not at all been taken into consideration by the Enquiring Judge while considering the evidence of P.W.1. Therefore, in our considered view, the findings of the Enquiring Judge is vitiated.
13. The Enquiring Judge in the report has observed as follows:-
'further, P.W.6 would state that he submitted his written submission before the P.D.J. in A.S.No.77 of 2001. This is not denied. But, the perusal of the judgment Ex.P2 rendered on 30.4.2002 would show that the delinquent officer has not chosen to refer to the written submission presented by him on behalf of P.W.1 in the judgment. I have also gone through both the trial Court judgment Ex.P1 in O.S.112 of 1999 and also the appellate court judgment Ex.P2 in A.S.No.77 of 2001. Though I am not expected to give any opinion on the judgment rendered by P.D.J. I cannot but record my disapproval over the manner in which the judgment in A.S.No.77 of 2001 in written. However, less said about this is better'.
The above said observation of the Enquiring Judge has been made after going through not only the judgment of the Trial Court but also the judgment rendered in A.S.No.77 of 2001. The correctness or otherwise of the judgment rendered by the petitioner ought not to have been gone into by the Enquiring Judge and in our considered view the Enquiring Judge ought not to have perused the judgment rendered in A.S.No.77 of 2001 at all. The Enquiring Judge has recorded his disapproval over the manner in which the judgment in A.S.No.77 of 2001 is written. In our considered view the law laid down by the Apex Court in AIR 1955 SC 271 (referred to supra) squarely applies to this case. Therefore, when the Enquiring Judge has acted on the above said irrelevant material, it is impossible to say to what extent the mind of the Enquiring Judge was affected by the irrelevant material used by him in arriving at the findings on Charge Nos.3 and 4 are concerned. Therefore, in our considered view as the Enquiring Judge has relied upon irrelevant material the findings on Charge Nos.3 and 4 are vitiated.
14. At this juncture we would like to point out that as held by the Apex Court in 1988 (3) SCC 370 (referred to supra) if trifling complaints relating to judicial orders which may have been upheld by the High Court on the judicial side are entertained, no judicial officer would feel protected; and it would be difficult for him to discharge his duties honestly and independently. It is, therefore, imperative for the High Court to protect its honest judicial officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants.
15. As far as the finding relating to second part of Charge No.2 is concerned the entire submission made by the learned senior counsel for the petitioner revolves around appreciation of evidence. The other contention is that the complaints sent by the Bar Association was motivated and without basis and the witnesses are biased and motivated and P.Ws.7 and 9 are all office bearers of the association and some of them have deposed that the disrespectful comments said to have been made by the petitioner were in Tamil while the others have deposed that they were in English. The Enquiring Judge has considered in detail the testimony of each and every witness who has been examined to prove Charge No.2 and all the contentions now put forth before us were also put forth before the Enquiring Judge and the same have been considered and rejected by the Enquiring Judge. We cannot re-appreciate the evidence and come to a different conclusion unless the finding of the Enquiring Judge is found to be perverse. It is not the contention of the learned senior counsel for the petitioner that the findings are perverse or not based on evidence and it is also not the contention of the learned senior counsel that such a finding could not have been reached by an ordinary prudent man and it was not also the contention of the learned senior counsel for the petitioner that there is no evidence to support the findings. Therefore, we see no reason to interfere with the findings of the Enquiring Judge as far as Charge No.2 is concerned.
16. The next question for consideration is as to whether the punishment of dismissal from service imposed on the petitioner is too harsh or any other punishment can be imposed.
17. The learned counsel appearing for the petitioner submitted that throughout his service the reputation of the petitioner relating to his honesty, integrity and impartiality have not been faulted with and no adverse entries have been made in that respect in his annual confidential reports. He further submitted that the petitioner in the normal course would have reached the age of super-annuation on 21.05.2005 but was dismissed from service on 08.04.2005 and the petitioner having put in a long number of years of service will be totally deprived of pensionary benefits if the punishment of dismissal is imposed and not only the petitioner but his entire family will be put to great hardship. Per contra, Mr.P.S.Raman learned Additional Advocate General submitted that since the charges proved against the petitioner are so serious no lenient view can be taken and the punishment imposed on the petitioner cannot be interfered with. The nature of punishment to be imposed on the petitioner has to be considered in the light of the proved delinquency of the petitioner, his past record of service and the consequences that may be faced by the petitioner and his family by the punishment imposed. In the light of the submissions made by the learned senior counsel for the petitioner we called for the petitioner's annual confidential reports and a perusal of the same show that no adverse entries have been made relating to the petitioner's honesty, integrity and impartiality. Charge No.2 does not relate to any demand for bribe. Though Charge No.2 is serious, disparaging remarks about the Judges of the High Court seems to have been made due to indiscretion on the part of the petitioner but such disparaging remarks made by the petitioner could not be viewed lightly.
18. As contended by the learned senior counsel for the petitioner the petitioner has put in a long number of years of service and there is no adverse entries in his annual confidential reports and in such circumstances if the punishment of dismissal from service is imposed not only the petitioner but his entire family will be put to great hardship. Therefore we are of the considered view that the ends of justice will be met if punishment of dismissal from service is modified into one of compulsory retirement since both the penalties are major penalties and the punishment of dismissal from service appears to be disproportionate and not commensurate with the act of delinquency of the petitioner. Hence we modify the dismissal from service into one of compulsory retirement.
19. In the result the punishment of dismissal from service imposed against the petitioner stands modified to that of compulsory retirement from service with effect from the date of the impugned proceedings namely 08.04.2005 and the writ petition is ordered accordingly. No costs.
srk TO
1. The Chief Secretary to Government, State of Tamil Nadu Public (Special A) Department Fort St. George, Chennai - 600 009
2. The Registrar General High Court, Madras, Chennai - 600 104.