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Witnesses examined in the absence of Presiding Officer by Process Writer - Compulsory Retirement of District Judge is not Shocking [Case Law]

Service Law - Judicial Service - Departmental Enquiry - Additional District Judge - Compulsory Retirement - Scope of Judicial Review - Rules and Orders (Criminal) - Rule 180 - Witnesses were being examined in the absence of the petitioner as Presiding Officer - Evidence was being recorded during his absence in the Court by the Process Writer, which was being dictated by the Assistant Government Pleader - order of punishment of compulsory retirement is not disproportionate or shocking to conscience and hence, the order of punishment and dismissal of appeal/ representation does not warrant any interference.

Held:- The petitioner was holding the post of Additional District Judge which carries a great responsibility and he was under obligation to conduct himself in a manner befitting the post held by him. He was under duty to conduct the proceedings of the Sessions Trial inconformity with the provisions of Rules and Orders (Criminal). The evidence of the witnesses were recorded in his absence which was in gross violation of the Rule 180 of Rules and Orders (Criminal). The contention of the petitioner that the Stenographer of the Court was not available and therefore, the Process Writer was directed to take down the preliminary statements which were quite formal in nature, cannot be accepted. The manner of the conduct of proceedings in Civil/ Criminal cases before the subordinate Courts are held in accordance with Rules and Orders (Civil) and Rules and Orders (Criminal). Any deviation from the procedure prescribed in the aforesaid Rules cannot be accepted as the Presiding Officers of the concerned Courts are required to conduct proceedings in various matters strictly in accordance with the procedure so prescribed. Thus, the contention of the petitioner that infact the evidence was recorded in his presence and that he was required to go to his Chamber in relation to some pressing nature cannot be considered to be valid and legitimate reason permitting recording of evidence to continue in the absence of the Presiding Officer. Such conduct amounts to clear violation of provisions of Rules and Orders (Criminal) which amounts to dereliction of duties and misconduct under the Service Rules. {Para 8 & 9}


HIGH COURT OF MADHYA PRADESH : JABALPUR
CORAM Hon'ble Shri Justice Hemant Gupta, Chief Justice.
Hon’ble Shri Justice Vijay Kumar Shukla, Judge.
 (16.04.2018)


W.P. No.13437/2016
Suresh Kumar Aarsay v. State of M.P. and another
Shri Suresh Kumar Aarsay, the petitioner in person. Smt. Namrata Agrawal, Govt. Advocate for the respondent No.1.Shri B.N. Mishra, Advocate for the respondent No.2.
O R D E R
Per : Vijay Kumar Shukla, J.
The petitioner who was working on the post of Additional District Judge has filed the present writ petition being aggrieved by the order of punishment of compulsory retirement from service after departmental enquiry. He has also challenged the legality and validity of the order whereby the representation of the petitioner has been rejected by the respondent No.1.


2. The facts leading to filing of the instant writ petition are that the petitioner while posted as Additional District Judge, Aagar Malwa, District Shajapur, during the period 07-5-2011 to 21-9-2013, in a pending criminal case vide S.T. No.296/2011 [State of M.P. vs. Phool Singh). A complaint was made to the effect that the witnesses were being examined in the absence of the petitioner as Presiding Officer. An explanation was called from the petitioner by the learned District & Sessions Judge and a reply thereof was filed by the petitioner. Thereafter, a charge-sheet was issued to the petitioner on 13-03-2014 vide Annexure-P/5. Reply to the charge-sheet was filed by the petitioner, however, the same having not been found satisfactory, departmental proceedings were initiated against him. Charge was framed against the petitioner along with supporting material that the conduct of the petitioner is in contravention of the Rule 180 of the Rules and Orders (Criminal), as the evidence was being recorded during his absence in the Court by the Process Writer, which was being dictated by the Assistant Government Pleader.
3. The petitioner in the reply to the charge-sheet, although technically denied the charges levelled against him, but in para 8 of the reply he has also tendered apology and sought a reprieve for the act of his misconduct. Upon conclusion of the enquiry proceedings, a show cause notice dated 20th December, 2014 along with the enquiry report seeking response of the petitioner was issued to him. A reply to the said show cause notice was also filed by the petitioner denying the findings recorded by the Enquiry Officer and also sought indulgence to file supplementary reply on receipt of the documents sought by him under the Right to Information Act. He filed supplementary reply on 23rd March, 2015. After taking into consideration the aforesaid reply, the Full Court of the High Court passed a resolution on 8.10.2015 recommending for compulsory retirement of the petitioner. Accordingly, the impugned order was issued and his appeal/ representation against the said order was also rejected by the State Government vide its communication dated 22/27th July, 2016.
4. The petitioner, who appeared in person, confined his argument only to the quantum of punishment and submitted that instead of major punishment of compulsory retirement, some minor punishment may be imposed on him. He also submitted on merit that he was supplied blank video CD and raised the argument that the action of the respondents was also in violation of the principle of natural justice as in absence of the aforesaid vital records, he was deprived of the opportunity to put-forth a proper defense.
5. The petitioner further contends that the examination of two witnesses who turned hostile was with the consent of the counsel for the prosecution and the defense in the second half but the petitioner himself had examined the witnesses wherein their names, father’s name, age etc. were noted down on the deposition by him on his own handwriting and defense were questioned by him and conclusion was arrived at by him that they have turned hostile.


6. The respondents have refuted the allegations of the petitioner on merit and also submitted that the punishment imposed on the petitioner of compulsory retirement does not warrant any interference as the same is not highly disproportionate or shocking to the conscience taking into consideration the seriousness of the charges proved against the petitioner. It is stated by the respondents that the plea of the petitioner that the Video CDs and photographs were blank, has no merit because at no point of time right from the stage of issuance of the charge sheet till the submission of the enquiry report, the same was never raised. It is only after the conclusion of the proceedings and submission of the enquiry report, the petitioner has raised the said plea.
7. The question of providing proper opportunity has been specifically denied by the respondents in para 17 of the return. It is submitted that the copies of the CDs were made available to the petitioner on 17.5.2014. On 28.7.2014 the Presiding Officer for the first time produced the CD containing four photographs. The print out of the Photographs were also taken on record. The petitioner was present at that point of time and it was noted by the Enquiry Officer that copies of CDs were provided to him. The petitioner never objected that the CDs supplied to him were blank even on the subsequent proceedings. In the proceedings held on 19.8.2014 also, no objection was raised by the petitioner. Upon perusal of the aforesaid pleadings, we find that the entire story of the petitioner regarding supply of blank CDs at such a belated stage appears to be an after thought and the same cannot be accepted.
8. The petitioner was holding the post of Additional District Judge which carries a great responsibility and he was under obligation to conduct himself in a manner befitting the post held by him. He was under duty to conduct the proceedings of the Sessions Trial inconformity with the provisions of Rules and Orders (Criminal). The evidence of the witnesses were recorded in his absence which was in gross violation of the Rule 180 of Rules and Orders (Criminal) which is reproduced as under :- 
“Rule 180. The evidence of each witness should, in the cases referred to in Section 256 of the Code, be taken down by the Sessions Judge or magistrate with his own hand and in his mother tongue, unless he is prevented by any sufficient reason from taking down the evidence, of any witness, in which case he should record the reasons of his inability to do so and should cause the evidence to be taken down in writing from dictation in open Court : 
Provided that 
(i) ….......
(ii) …......” 
9. The contention of the petitioner that the Stenographer of the Court was not available and therefore, the Process Writer was directed to take down the preliminary statements which were quite formal in nature, cannot be accepted. The manner of the conduct of proceedings in Civil/ Criminal cases before the subordinate Courts are held in accordance with Rules and Orders (Civil) and Rules and Orders (Criminal). Any deviation from the procedure prescribed in the aforesaid Rules cannot be accepted as the Presiding Officers of the concerned Courts are required to conduct proceedings in various matters strictly in accordance with the procedure so prescribed. Thus, the contention of the petitioner that infact the evidence was recorded in his presence and that he was required to go to his Chamber in relation to some pressing nature cannot be considered to be valid and legitimate reason permitting recording of evidence to continue in the absence of the Presiding Officer. Such conduct amounts to clear violation of provisions of Rules and Orders (Criminal) which amounts to dereliction of duties and misconduct under the Service Rules.
10. The scope of judicial review in departmental proceedings is no longer res integra. In the case of B. C. Chaturvedi Vs. Union of India (1995)6 SCC 749, the Supreme Court has held that “Judicial review is not an appeal from a decision but a view of the manner in which the decision is made.” In the case of Bank of India Vs. Degala Suryanarayana – (1999)5 SCC 762, the Apex Court held that “Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides or perversity.” 


11. In the case of Lalit Popoli Vs. Canara Bank – (2003)3 SCC 583, the Apex Court held that “In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.” 
12. In the case of M.V. Bijlani Vs. Union of India – (2006) 5 SCC 88, the Supreme Court opined that “the jurisdiction of the Court in judicial review is limited.” 
13. As per the principles laid down in the aforesaid cases, it is clear that interference can be made against the findings of the Inquiry Officer and other authorities, provided findings are perverse or it is a case of no evidence. If there is some evidence to support the conclusion of Inquiring Authority, no interference can be made. Adequacy of evidence cannot be subject matter of judicial review.
14. The next argument of the petitioner that the quantum of punishment is highly disproportionate to the alleged charge can also not be accepted. The petitioner was holding the post of Additional District and Sessions Judge. Therefore, the petitioner was under the obligation to maintain absolute integrity and conduct beyond reproach. In the case of All India Judges Association Vs. Union of India (1993)4 SCC 288, the Apex Court held that “Judicial service not a service in the sense of employment. The Judges are not employees. As members of the judiciary, they exercise sovereign judicial powers of the State, absolute uprightness of behavior and conduct is required to be maintained...” 
15. In the case of Union of India & Others Vs. R. K. Sharma – (2001)9 SCC 592 the Apex Court held that High Court under Article 226 or 227 and Supreme Court under Article 32 should not interfere with the punishment so imposed merely on compassionate grounds such as it being disproportionately harsh; except in ex facie cases of perversity or irrationality.


16. In the case of Delhi Police through Commissioner of Police & Others Vs. Sat Narayan Kaushik – (2016)6 SCC 303, the Apex Court held that “the High Court can interfere with quantum of punishment only after taking into consideration totality of facts and circumstances of case, such as nature and gravity of charges leveled against employee, its gravity, seriousness, work done in the past, remaining tenure of the delinquent employee left, etc.” In other words it is necessary for the High Court to take these factors into consideration before interfering with the quantum of punishment.
17. In the case of Chief Executive Officer, Krishna Distt. Cooperative Central Bank Ltd. & Another Vs. K. Hanumantha Rao & another – (2017)2 SCC 528, the Apex Court reiterated the legal position and held that it is not the function of the High Court to impose a particular punishment even in those cases where it was found that the penalty awarded by the employer is shockingly disproportionate. - On facts held, since punishment imposed was not shockingly disproportionate to misconduct proved, there was no question of remitting case to disciplinary authority arises.
18. In view of the conspectus of the present case and enunciation of law, we find that the order of punishment of compulsory retirement is not disproportionate or shocking to conscience and hence, the order of punishment and dismissal of appeal/ representation does not warrant any interference. 
19. Accordingly, the writ petition is dismissed. No orders as to costs.

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