At this stage, it is also pertinent to observe
that while ordering framing of charge against two
employees of the municipality, the petitioner ordered
discharge of three accused though in the chargesheet,
the police had levelled charges against all the
accused under sections 465, 466 and 477 read with
section 34 of Indian Penal Code. If the petitioner –
delinquent officer found some evidence against the
employees of the municipality to proceed against them,
he ought to have appreciated that the same set of
evidence could be considered for proceeding against
the three accused also and there was no earthy reason
as to why those three accused should have been
discharged without a trial by applying a different
yard stick. In our view, the order passed by the
petitioner was such that no Judicial Officer with a
reasonable prudence would pass such an order.
Therefore, we are of the considered opinion that the
High Court on its administrative side has rightly
viewed the order under consideration passed by the
petitioner – delinquent officer and his conduct in
doing so in the background of the fact that he was not
a novice or a junior judge since he had by then put in
nearly 16 years of service.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1648 of 2010
P G VYAS....Petitioner(s)
Versus
HIGH COURT OF GUJARAT & 1....Respondent(s)
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 04/04/2013
1. The present petition is directed against the
order dated 24.8.2009 passed by the this Court on its
administrative side imposing major punishment of
compulsory retirement of the petitioner from judicial
service.
2. The broad facts are that the petitioner was
appointed as Civil Judge (Junior Division) and
Judicial Magistrate, First Class in 1981 and
thereafter promoted as Civil Judge (Senior Division)
in 1990. It can be noticed from the record that the
petitioner was served with the chargesheet dated
14.10.2003 while he was working as Chief Judicial
Magistrate, Mehsana wherein it was stated that the
petitioner passed the order discharging three out of
five accused in Criminal Case No.91 of 1996 for the
consideration other than the judicial one and thereby
indulged in corrupt practice, exhibited an attitude of
distrust in judicial department by the litigants and
the lawyers and failed in maintaining dignity of
judiciary as a whole and thereby the petitioner was
guilty of indulging in corrupt practice, dereliction
in discharging judicial functions, misconduct and
acted in a manner unbecoming of a judicial officer.
3. It can be further noticed that the
petitioner responded and denied the said chargesheet
vide his statement of defence dated 19.3.2004.
Thereafter, full-fledged departmental inquiry was
conducted against the petitioner and ultimately, the
Inquiry Officer came to the conclusion that the main
charge of corrupt practice against the petitioner is
not proved, however, held that consequential charges
arising out of the main charge of dereliction in duty
and unbecoming of a judicial officer was proved.
Thereafter, the petitioner was served with the show
cause notice as to why major penalty should not be
imposed upon the petitioner. In pursuance of the show
cause notice, the petitioner submitted his reply on
15.4.2009, but ultimately, the impugned order dated
24.8.2009 of compulsory retirement of the petitioner
from judicial service came to be passed by this Court
on its administrative side. Hence, the present
petition.
4. We have heard learned counsel for the
parties and perused the papers of the case placed
before us.
5. It is mainly contended by the learned
counsel for the petitioner that as the charge of
corruption levelled against the petitioner is not
proved, the very basis of issuance of chargesheet does
not survive. The Inquiry Officer ought not to have
held that the petitioner is guilty of dereliction in
discharge of duty and unbecoming of a judicial officer
and consequently, the disciplinary authority ought not
to have imposed any punishment much less the major
punishment of compulsory retirement. It is further
contended that the petitioner, while discharging the
accused, took into consideration the documents which
were produced by the accused and taking into
consideration the overall case of the prosecution in
light of the proposition of law holding the field at
the relevant point of time, discharged the said
accused. It is also contended that there is
unexplained and inordinate delay of about 7 years in
initiating the departmental inquiry against the
petitioner which has resulted into serious injustice
to the petitioner.
6. On the other-hand, Mr.Shalin Mehta, learned
senior counsel appearing with Mr.Hemang N.Shah for
respondent No.1 has vehemently contended that the
discharge order reads as if it is an order of
acquittal upon completion of trial and while passing
the order of discharge, the petitioner has not
referred to the decision of the Apex Court in the case
of Satish Mehra Vs. Delhi Administration and another,
reported in 1996 (3) Crimes 85 (SC) which permitted
taking into account the documents produced by the
accused while deciding the discharge application
coupled with the fact that whether the delinquent
officer was guided by the said decision in Satish
Mehra (supra) or not. Mr.Mehta and Mr.Tanmay Karia,
learned AGP have supported the impugned order by
contending that the impugned order passed by this
Court on its administrative side is just, legal and
proper which does not require interference by this
Court.
7. It can be noticed from the record and also
emerges during the course of arguments that the
petitioner had discharged the two builders and the
Chief Officer of the Nagarpalika out of five accused
against whom the chargesheet was filed. He also
ordered framing of charge against the two employees of
the municipality who were equally involved in the same
case.
8. In the facts and circumstances of the case,
the High Court on its administrative found that the
petitioner passed the order in question in dereliction
of the duty and his act amounted to misconduct and one
of unbecoming of a judicial officer. It is also
required to be noted that for want of direct evidence,
the Inquiry Officer did not hold that the petitioner
had indulged in corrupt practice. It is hardly
required to be noted that when the discharge order
came to be passed by the petitioner, the Apex Court
has delivered the judgment in the case of Satish Mehra
(supra) on 31.7.1996 and the decision in the case of
Satish Mehra (supra) came to be overruled much later
as the High Court has noticed earlier in the year
2005. At this stage, it is also pertinent to observe
that while ordering framing of charge against two
employees of the municipality, the petitioner ordered
discharge of three accused though in the chargesheet,
the police had levelled charges against all the
accused under sections 465, 466 and 477 read with
section 34 of Indian Penal Code. If the petitioner –
delinquent officer found some evidence against the
employees of the municipality to proceed against them,
he ought to have appreciated that the same set of
evidence could be considered for proceeding against
the three accused also and there was no earthy reason
as to why those three accused should have been
discharged without a trial by applying a different
yard stick. In our view, the order passed by the
petitioner was such that no Judicial Officer with a
reasonable prudence would pass such an order.
Therefore, we are of the considered opinion that the
High Court on its administrative side has rightly
viewed the order under consideration passed by the
petitioner – delinquent officer and his conduct in
doing so in the background of the fact that he was not
a novice or a junior judge since he had by then put in
nearly 16 years of service.
9. It is by now well settled that judicial
service is not a service in the sense of an employment
as is commonly understood. Judges are discharging
their functions while exercising the sovereign
judicial power of the State. Their honesty and
integrity is expected to be beyond doubt. It should be
reflected in their overall reputation. There is no
manner of doubt that the nature of judicial service is
such that it cannot afford to suffer continuance in
service of persons of doubtful integrity or who have
lost their utility.
10. In this view of the matter, the petition
fails and the same deserves to be dismissed.
Accordingly, the petition is dismissed. Rule is
discharged.
(JAYANT PATEL, J.)
(MOHINDER PAL, J.)
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