Indeed, the handling of the matter by the High Court may have left the
appellant both bemused and betrayed. A possible union leader, P. K. Singh, led a
group of indisciplined railway employees to chant slogans against the Railway
Magistrate for the Railway Magistrate’s grievous fault of trying to correct what he
perceived was a wrong to the public. The disruption of train services appears to
have been after P. K. Singh was detained. P. K. Singh had been detained for his
unruly behaviour in the Railway Magistrate’s court for which separate
proceedings were instituted and neither charge brought against the appellant
referred to such matter. Rather than the judicial officer being protected by the
High Court against the act of insult and intimidation faced by him in the Railway
Magistrate’s court by unruly railway employees, it was the Railway Magistrate
who was pushed to the dock to suffer for wanting to remedy a public wrong. At
any rate, the appellant may have acted in error or in excess of the authority that
he perceived to possess but even the preliminary report said that it did not find
that the appellant acted in bad faith or with any malicious intention. The
preliminary report expressly said so. The inquiry report endorsed the preliminary
report. Even the disciplinary authority did not expressly find the appellant to
have acted in bad faith or with any malice.
69. In the light of the above, the order of the disciplinary committee finding the
appellant guilty of the charges brought against him cannot be sustained. As a
consequence, the punishment inflicted on the appellant, which is otherwise
found to be disproportionate and shocking even if the guilt was established, is set
aside. The decision of the appellate authority is quashed. The judgment and
order impugned dated July 14, 2017 is set aside and the writ petition is allowed
to such extent.
70. The appellant is to be reinstated in service immediately and the appellant
should be considered to have been in continuous service without any break. The
appellant will be entitled to all benefits and promotion as if no disciplinary
proceedings had been initiated against the appellant, save the full complement of
his salary. The appellant will be paid 75 per cent of the salary that he would have
earned had he remained in service, since it does not appear that the appellant
had taken up any alternative work in the interregnum. Though the appellant did
not render any service, his punishment was unjustified and, at any rate, grossly
disproportionate to the conduct complained of. The appellant appears to have
used some of the time to obtain a Master’s degree.
71. The court appreciates the erudite and impartial assistance rendered by
learned Advocate-General in the matter.
72. FMA 26 of 2019 is allowed as above with costs assessed at Rs.1 lakh to be
paid by the High Court to the appellant.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
JUSTICE SANJIB BANERJEE
And
JUSTICE SUVRA GHOSH
FMA 26 of 2019
MINTU MALLICK Vs HON’BLE HIGH COURT AT CALCUTTA AND OTHERS
Date: July 4, 2019.
SANJIB BANERJEE, J. : –
When Mintu Mallick stepped out of his home and hopped across to the
Lake Gardens railway station on the morning of May 5, 2007 to take a train to
workplace Sealdah station, little did he know that he had embarked on an ordeal
that would last a decade and more and would haunt him for the rest of his life.
Mallick was then enjoying the dual charge of Judicial Magistrate, 4th Court and
Railway Magistrate, Sealdah. The Railways Magistrate’s court in Sealdah is
within the precincts of the station. According to Mallick, the particular Up Budge
Budge-Sealdah local that he intended to take was late and, upon speaking to the
locals who regularly availed of the suburban rail services on the route, he
discovered that the train was invariably late. Mallick claims that he was also
informed that the usual late running of such train was due to it stopping illegally
somewhere after the New Alipore station when contraband material would be offloaded
from the train and the drivers and guards played ball with smugglers to
facilitate the spurious trade.
2. Mallick felt that as the Railway Magistrate posted at Sealdah, which
housed the headquarters of the relevant suburban division, he had the authority
to inquire into the matter and set the perceived wrong right. When the relevant
train arrived at the Lake Gardens station at about 10.16 am, Mallick thought it
fit to enquire of the driver as to the reasons for the delay and get to the bottom of
what he perceived to be a malaise. He knocked on the door of the driver’s cabin,
was allowed entry therein upon disclosing his identity and travelled in the
driver’s cabin to Sealdah station. In course of the journey, Mallick apparently
quizzed the driver as to the delay on that day and whether such delay was usual
and the reasons therefor. Mallick claims that he did not get any satisfactory
answer to his questions, whereupon he instructed the driver to contact the guard
of the train and for both the driver and guard to report to the Railway
Magistrate’s court in Sealdah so that the matter could be appropriately
addressed.
3. According to Mallick, the driver of the train was angry that he had to
attend the Railway Magistrate’s court or report on a matter that the driver
thought was routine and not unusual. At the insistence of Mallick, the driver
contacted the guard, but the driver made his feelings clear that he did not
appreciate Mallick’s intervention and Mallick got the impression that the driver
would not pay heed to Mallick’s request to report to the Railway Magistrate’s
court. It was in such circumstances, according to Mallick, that he directed the
railway police immediately upon disembarking at Sealdah station to ensure that
the driver and the guard of the train were presented before the Railway
Magistrate’s court. Mallick maintains that he did not instruct the railway police
personnel to either arrest the guard or the driver or to take them to the police
station within the Sealdah station, but the railway police personnel present
informed him that the driver and the guard would be taken to the Railway
Magistrate’s court after certain formalities were completed by the police
personnel. Mallick also asserts that the common room for guards and drivers at
the Sealdah station was then adjacent to the railway police station, both being on
the way to the Railway Magistrate’s court from the platform at which the relevant
train had terminated.
4. The guard and the driver were accompanied to the Railway Magistrate’s
court, whereupon they sought some time for submitting their reports. The
relevant reports were submitted within half an hour, by which time Misc. Case
No. 5 of 2007 had been suo motu instituted and registered by the Railway
Magistrate in respect of the late running of the relevant train. According to the
Railway Magistrate, at or about the time that the driver and the guard submitted
their reports and left the Railway Magistrate’s court, some railway employees,
particularly sky-blue-shirt-clad railway drivers, gathered in and around the
Railway Magistrate’s court, shouted slogans, used abusive language against the
Railway Magistrate and disrupted work in the court. These drivers, according to
Mallick, were led by a person later identified as P. K. Singh.
5. In view of what the Railway Magistrate perceived to be unruly and
unacceptable behaviour in his court and in his presence by railway personnel, a
second set of proceedings was initiated under Section 345 of the Code of Criminal
Procedure, 1973 which deals with the procedure in certain cases of contempt
when an act of contempt is committed in the view or in the presence of any civil,
criminal or revenue court. Such second case was initiated for an offence felt to
have been committed under Section 228 of the Penal Code, 1860 for intentional
insult or interruption to public servant sitting in judicial proceedings.
6. It has been the consistent case (both of the appellant and as evident from
the preliminary report of the High Court) that upon P. K. Singh being taken into
custody following the case instituted against him under Section 228 of the Penal
Code, violence erupted around the Railway Magistrate’s court. The agitating
railway personnel, mostly motormen and drivers, railed and ranted, brought
down the court’s nameplate, disconnected the electricity and water connection to
the Railway Magistrate’s court and his adjoining chambers and prevented the
staff at the Railway Magistrate’s court from even bringing in water in the hot
summer afternoon.
7. It also appears that the agitation led to the disruption of local train services
at the Sealdah station for a considerable period of time before normalcy was
restored late in the afternoon, some four or five hours after the delayed train from
Budge Budge arrived at the Sealdah station.
8. Following the incident and the High Court being informed of it, a discreet
inquiry was directed to the conducted which culminated in a preliminary report
being filed. On the basis of such preliminary report, Mallick was first suspended
and memorandum of charges were later issued on December 3, 2007 to the
concerned judicial officer. The articles of charge as framed must be seen in the
entirety, if only to assess the reasonableness of the steps and the action that
followed:
“Statement of Articles of Charge framed against Shri
Mintu Mallick, Judicial Magistrate, 4th Court-cum-Railway
Magistrate, Sealdah, South 24-Parganas (now under
suspension).
ARTICLE OF CHARGE NO. 1
That you, Shri Mintu Mallick, while functioning as
Judicial Magistrate, 4th Court-cum-Railway Magistrate,
Sealdah, South 24-Paraganas, unauthorisedly travelled in the
Motor Man’s Cabin in a Budge Budge–Sealdah Local Train
from the Lake Gardens Station to the Sealdah Railway Station
on May 5, 2007 and prima facie it appears that you as the as
Judicial Magistrate, 4h Court-cum-Railway Magistrate,
Sealdah, South 24-Parganas used to travel in the similar
fashion in the past without having any valid pass to enter
Motor Man’s Cabin having full knowledge that such
unauthorized travelling is unbecoming of a public servant and
also amounts to gross misconduct.
The allegation shows that you made improper and illegal
exercise of administrative powers so vested upon you as the
Judicial Magistrate, 4th Court-cum-Railway Magistrate,
Sealdah, South 24-Parganas and such allegations, if proved,
would amount to gross misconduct and such behavior on your
part as a public Servant is unbecoming of a Judicial Officer.
ARTICLE OF CHARGE NO. II
That you, Shri Mintu Mallick, unauthorisedly travelled
in the Motor Man’s Cabin in a Budge Budge –Sealdah Local
Train from the Lake Gardens Station to the Sealdah Railway
Station on May 5, 2007 and during the course of journey you
enquired about the reasons of the late running exceeding your
jurisdiction as a Railway Magistrate.
That you, obtained a report on late running of the trains
from both Sri Dipak Sanyal, the Motor Man and Sri Monoj
Kumar Mondal, the Guard of the said local train after the
arrival of the said Sealdah bound local train at Sealdah Station
at 10-45 a.m. The Railway employees started demonstration as
soon as the driver and the guard of that particular local train
were taken first to the Thana and thereafter to the Court
pursuant to your verbal order and it prima facie appears that
because of the aforementioned unauthorized activities on your
part, there was violent demonstration by the railway employees
resulting in total disruption of train services within Sealdah
Division from 11.15 a.m. to 3.45 p.m. on that day.
The allegation shows that you made improper and illegal
exercise of administrative as well as Judicial powers so vested
upon you as the Judicial Magistrate, 4th Court-cum-Railway
Magistrate, Sealdah, South 24-Parganas and such allegations,
if proved, would amount to gross misconduct and such
behavior on your part as a public Servant is unbecoming of a
Judicial Officer.”
9. In the statement of imputation of improper and unbecoming conduct
forwarded to the judicial officer in connection with the articles of charge, the
charges were, in effect, repeated. The first charge made out was that the judicial
officer had travelled in the motorman’s cabin in an unauthorised manner after
making forcible entry therein despite the objection of the concerned motorman;
that the judicial officer was in the habit of regularly travelling in the motorman’s
cabin despite being aware that it was illegal so to do. The second charge was that
the judicial officer had exceeded his jurisdiction in enquiring of the driver as to
the reasons for the late running of the train; that the judicial officer had
compelled the motorman and the guard to submit a report on the late running of
the train; and, that because of the unauthorised verbal direction of the judicial
officer that the driver and the guard of the relevant train be taken to the railway
police station and, thereafter, to the Railway Magistrate’s court, there was a
violent demonstration by the railway employees resulting in total disruption of
train services within the Sealdah division from 11.45 am to 3.45 pm on the
particular day. The statement of imputation informed the judicial officer in either
case that the relevant charge, if proved, “would show that you made improper
and illegal exercise of administrative powers … and such conduct on your part is
unbecoming of a Judicial Officer.”
10. The officer responded to the memorandum of charges by his detailed reply
of January 16, 2008. The substance of his reply has been referred to earlier in
this judgment. The officer claimed that it was his belief that he had the
appropriate authority as a Judicial Magistrate and as the Railway Magistrate
under both the Criminal Procedure Code and the Railways Act, 1989 read with
the rules framed thereunder to address a matter of public importance as the
regular delay in the running of a particular train that caused inconvenience to
members of the public. In his reply, the officer referred to the records of the two
sets of proceedings initiated by him: the first for the late running of the relevant
train; and, the other for the violent demonstration on the particular day in the
Railway Magistrate’s court and the contemptuous act of intimidation indulged in
by the railway employees led by a particular person.
11. The inquiry officer appointed by the High Court first examined the then
Registrar (Vigilance and Protocol) of the High Court who had conducted the
discreet inquiry and submitted the preliminary report following which the
charges were brought against Mallick. Such Registrar proved his report and
maintained in his deposition that the delinquent should not have questioned the
driver or guard regarding the delayed running of the train and the judicial officer
should not have required the railway police to take the guard or the driver to the
railway police station before causing them to attend the Railway Magistrate’s
court. It was such Registrar’s opinion that the Railway Magistrate should only
have asked the railway authorities to look into the matter regarding the late
running of the relevant train, if it was necessary at all; but the Railway
Magistrate had erred in proceeding with the matter himself which resulted in the
disruption of the train services at the Sealdah division on the particular day. The
Registrar emphasised that the Railway Magistrate’s entry and travel in the
motorman’s cabin was unauthorised. Though the Registrar accepted that he had
not imputed any malicious intention on the part of the delinquent officer as to
the manner in which he conducted himself on the particular day but it was his
opinion, upon his interaction with several personnel in course of the discreet
inquiry conducted by him, that the judicial officer was in the wrong and liable to
be proceeded against.
12. The inquiry officer examined several railway personnel including P. K.
Singh who suffered detention for a short while in the railway police station lockup
and Dulal Chandra Sarkar, the driver of the relevant train on which the
Railway Magistrate travelled on May 5, 2007. The driver admitted that on the
relevant day the train reached the Lake Gardens station at 10.16 am instead of
the scheduled time of 10.01 am. He accepted that he opened the door of the
motorman’s cabin and gave access thereto to the Railway Magistrate upon
discovering his identity but he also maintained that he called upon the Railway
Magistrate to demonstrate his authority to be in the motorman’s cabin, which the
Railway Magistrate failed to produce. He also accepted that he “could not offer
any explanation about the late running of train by 15 minutes to the Railway
Magistrate.”
13. The delinquent officer was also grilled in course of the inquiry. Such officer
substantially repeated what was contained in his detailed reply of January 16,
2008. The judicial officer referred to various provisions of the Criminal Procedure
Code, the Railways Act and the rules framed thereunder to substantiate his
perception that he had due authority to inquire into the matter of the delayed
running of a train and take remedial measures in such regard for the larger
public good.
14. The inquiry officer submitted his report on January 7, 2013. The inquiry
officer concluded, on the first charge, that the delinquent judicial officer had
travelled in the motorman’s cabin on the particular day in an unauthorised
manner since Rule 30608 of the AC Traction Manual framed under the Railways
Act precluded entry into the motorman’s cabin without due authority and
without a valid cab-pass. The inquiry officer, however, also held that there was
no evidence to establish that the delinquent officer indulged in such
unauthorised travel on a regular basis. Thus, qua the first charge brought
against the judicial officer, it was held that his entry in the motorman’s cabin on
the relevant train was unauthorised.
15. As to the second charge, the inquiry officer found that the same stood
substantiated as the Railway Magistrate had no legal sanction under the
Criminal Procedure Code or the Railways Act to take suo motu steps for the
delayed running of any train.
16. By a letter dated March 7, 2013 the inquiry report of January 7, 2013 was
forwarded to the delinquent. The relevant letter informed the delinquent that
such report was being furnished to him in terms of Rule 11(19) of the West
Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007
(hereinafter referred to as “the said Rules of 2007”) and as per a resolution of the
Administrative Committee of the High Court dated February 20, 2013. The letter
required the delinquent to forward his representation, if any, within 30 days of
the receipt of the report and called upon the delinquent to indicate “why the
Report shall not be accepted and you should not be suitably punished.” Such
show-cause notice resulted in a 94-page written representation being furnished
by the delinquent on April 6, 2013 in which the judicial officer questioned the
basis of the inquiry report upon detailed reference to such report, the
observations therein and the conclusions drawn by the inquiry officer on the
material gathered in course of the inquiry. Specific observations in the inquiry
report were quoted in the representation and dealt with by the delinquent in his
attempt to demonstrate that the conclusions ultimately drawn by the inquiry
officer were either not based on the material garnered during the inquiry or on
extraneous matters that had no nexus with the articles of charge brought against
the delinquent.
17. By a letter dated August 8, 2013 addressed by the High Court to the State
Government, which was also forwarded to the delinquent, the State Government
was informed that upon the High Court having considered the charge-sheet, the
inquiry report and the written representation submitted by the delinquent, the
High Court had been pleased to resolve as follows:
“Considering the impact of the activity of the delinquent
officer on the society and misconduct which is totally
unbecoming of a Judicial officer, resulting in disruption of
train services due to demonstration made by the railway
employees, thereby tarnishing the image of the judiciary in the
estimation of the members of public, in the facts and
circumstances of the case, it is consider (sic, considered)
appropriate to inflict upon him punishment of compulsory
retirement from Judicial Service.”
The State Government was advised to issue an appropriate Government Order in
terms of Rule 10(b)(iii) read with Rule 20(b) of the said Rules of 2007.
18. The deposed judicial officer preferred an appeal before the Governor
against the decision of the disciplinary authority communicated to him by the
letter of August 8, 2013. Such appeal was filed on or about September 4, 2013.
The appeal papers were apparently forwarded by the Governor to the High Court
in terms of Rule 16(3) of the said Rules of 2007. The opinion of the High Court
appears to have been received by the Governor on January 15, 2014 to the
following effect:
“The decision of compulsory retirement as inflicted by
the Hon’ble Court upon the delinquent officer is an outcome of
the majority rule countermeasuring with the quantum of guilt,
hence stands unaltered and irrecoverable (Sic, irrevocable?)
whatsoever (sic).”
The Governor’s order of January 22, 2014 indicated that the Governor agreed
with the opinion and the appeal petition of the delinquent was disallowed. The
Governor’s order was communicated to the delinquent by a letter of February 3,
2014.
19. The ousted judicial officer instituted a petition under Article 226 of the
Constitution of India before this court on or about April 21, 2014. It is the
rejection of such petition by the judgment and order of July 14, 2017 that has
been assailed in the present appeal. The appeal was assigned to the bench
presided over by the senior Judge on this bench on October 5, 2018, just before
the Puja Vacation. The matter was substantially heard by the middle of April,
2019 before the lawyers’ cease-work, which continued till the summer vacation,
intervened. The hearing was, thereafter, resumed and concluded on June 28,
2019.
20. The writ petitioner-appellant conducted his matter in person in the court of
the first instance; just as he does here, too. In the impugned judgment and order
of July 14, 2017, running into 20 pages, the incident of May 5, 2007 is described
over the first three pages before the two articles of charge are quoted till nearly
the end of the fifth page. The next two pages in the judgment impugned refer to
the notices being served on the appellant, his replies, the inquiry report and the
subsequent notice before quoting the entirety of the letter dated August 8, 2013.
The filing of the appeal and the dismissal thereof are recorded before quoting the
reliefs claimed in the petition under Article 226 of the Constitution. The next
three pages in the judgment impugned allude to the primary contentions in the
writ petition, the affidavit filed by the High Court in opposition to the petition and
the stand taken by the High Court in accordance with the said Rules of 2007.
About six pages in the judgment impugned have been expended on the legal
precedents cited by the appellant herein and the High Court administration. The
adjudication is reflected over three pages. The writ court observed that the
appellant’s actions complained of were “well beyond the scope of the Code of
Criminal Procedure, 1973”; that the “instance of detention/arrest ordered by the
petitioner is improper, both in form and in substance”; and, that the petitioner
was not acting judicially when the petitioner entered the motorman’s cabin to
enquire of the driver as to the reasons for the delayed running of the train. As to
the punishment of compulsory retirement, the court observed that since the
petitioner’s entry into the motorman’s cabin was unauthorised, “interrogating the
motorman in the name of a judicial enquiry and subsequently ordering his
detention/arrest, independently and collectively amount to offences which are
patently illegal in nature.” In the relevant paragraph dealing with the
reasonableness of the punishment inflicted on the petitioner, the court observed,
at least at two places, that the petitioner had travelled in the motorman’s cabin
on previous occasions. The punishment was held to be justified since the
“petitioner was engaged in several offensive acts and one among them was his
previous conduct of having regularly travelled in such unauthorised manner …”.
The court did not find the punishment of compulsory retirement to be arbitrary
or unreasonable, far less perverse.
21. Of the several relevant and irrelevant grounds canvassed by the appellant
in person, the one that stands out is that the appellant was never conveyed any
reasons why the disciplinary authority perceived that the charges levelled against
the appellant stood substantiated or the appellant’s contentions as to the inquiry
report were unfounded. The appellant appears to be equally bemused by the
abrupt order in the appeal without any reflection of his contentions having been
looked into or addressed.
22. It is elementary that in this jurisdiction under Article 226 of the
Constitution, the court scarcely sits in appeal over the impugned decision. The
writ court looks into the decision-making process rather than the decision: as
long as the decision is not utterly perverse such that no reasonable person in the
position of the decision-maker could have reasonably made such decision; or, in
the more modern assessment on the basis of proportionality in preference to the
Wednesbury rules of reasonableness, the ultimate decision is not grossly
disproportionate to the conduct complained against. It may do well to keep in
mind that in matters of the present kind, what the writ court looks into is
whether there was due notice to the writ petitioner, whether he was afforded a
fair hearing – where the hearing implies a consideration of the objections or
grounds raised by him – and a reasoned order was rendered on the matter. To
emphasise on the limited scope of judicial review available in this jurisdiction, it
is the authority of the decision-making body to make the decision which is
assessed in addition to ascertaining whether a reasonable procedure was
followed and the matter culminated in a cogent decision. It is on such tests that
the present appeal and the grievance of the writ petitioner need to be addressed.
23. The first aspect that has to be seen pertains to the scope of the proceedings
and, as a consequence, the scope of the inquiry conducted in course thereof and
the nexus of the ultimate decision with the scope of the departmental
proceedings. The parameters in such regard were outlined in the articles of
charges and the statement of imputation of conduct appended to the articles in
the High Court’s letter of December 3, 2007.
24. The first article contained two paragraphs. The first paragraph charged the
judicial officer with travelling in an unauthorised manner in the motorman’s
cabin on the relevant train on May 5, 2007. The second part of such first charge
complained of the judicial officer resorting to such unauthorised travel in similar
fashion in the past or on regular basis. The second paragraph of the first charge
was that either action complained of in the first paragraph amounted to improper
and illegal exercise of administrative power by the judicial officer and, if proved,
would amount to gross misconduct as a public servant and unbecoming of a
judicial officer. The second article of charge was covered three paragraphs. The
first paragraph charged the Railway Magistrate of exceeding his jurisdiction by
enquiring of the driver the reasons for the delayed running of the train in course
of the journey. The second paragraph also referred to the reports obtained by the
judicial officer from the motorman and the guard of the relevant train. Such
paragraph also referred to the driver and the guard being taken to the railway
police station and to the Railway Magistrate’s court pursuant to the verbal
direction of the Railway Magistrate. Both the obtaining of the reports and the
verbal directions were said to be unauthorised activities that resulted in a violent
demonstration by railway employees and the total disruption of train services for
a specified time in the Sealdah division. The third paragraph under the second
article of charge was on the same lines as the second paragraph under the first
article: that the acts complained of were improper and illegal exercise of
administrative power by Railway Magistrate, and, if proved, would amount to
gross misconduct as a public servant and unbecoming of a judicial officer.
25. It is fundamental that in departmental proceedings which are initiated by
the issuance of a show-cause notice or a charge-sheet, the ultimate order or the
order of punishment has to be in consonance with the show-cause notice or
charge-sheet. In other words, the scope of the entire proceedings is defined by
the show-cause notice or the charge-sheet. The same is true for decisions of any
State or other authority within the meaning Article 12 of the Constitution arising
out of a show-cause notice. When a process is triggered off by a show-cause
notice or a charge-sheet, the reasonableness of what follows, including the
quality of the opportunity afforded to the person proceeded against and the
propriety of the ultimate decision, are pegged to and rooted in the show-cause
notice. The proceedings can, ordinarily, not be expanded beyond what is
conceived of and outlined by the show-cause notice and any transgression,
almost invariably, would not pass the scrutiny under judicial review.
26. In the context of the charges levelled against the appellant in this case it
was possible, at the highest, for the appellant to have been found guilty on both
counts in respect of the matters referred to in the first article of charge and also
for the appellant to have been found to have acted in an unauthorised manner in
enquiring of the motorman as to the reasons for the delay in running of the train
and further in obtaining the reports from the driver and the guard of the relevant
train and requiring such railway personnel to be detained or produced in his
court. Even on the most charitable reading of the second article of charge, the
violent demonstration and the disruption of the train services could not be
directly attributed to the appellant even if the underlying suggestion in the article
was that the appellant’s actions had triggered off the violent demonstration or the
disruption of the train services.
27. As it transpires from the inquiry officer’s report, there was no doubt that
the appellant entered into the motorman’s cabin on the relevant train and
travelled therein from Lake Gardens to Sealdah. On the basis of the material
presented before the inquiry officer, such officer perceived the appellant’s entry
into the motorman’s cabin to be unauthorised and, to such extent, the first
article of charge was found to be established for action to be taken in such
regard. However, the inquiry report unambiguously found, as a matter of fact,
that there was no evidence of any previous instance of the appellant having
travelled in the motorman’s cabin. It was, thus, a single occasion of unauthorised
travel in the motorman’s cabin that could be said to have been established
against the appellant herein, if it was unauthorised at all. In the light of such
clear and categorical finding in the inquiry report that it was a solitary instance
of the appellant travelling in the motorman’s cabin, the judgment impugned is
clearly flawed in its reference to the appellant travelling in the motorman’s cabin
on previous occasions (“he had done the same on previous occasions”). As a
consequence, the consideration as to the propriety of the punishment by the
court of the first instance is tainted by extraneous or erroneous considerations,
particularly in the court referring to “his previous conduct of having regularly
travelled in such unauthorized manner …”.
28. Similarly, the writ court was clearly wrong in justifying the finding of guilt
against the appellant and the consequential order of punishment sandwiched in
the extremely short order of the disciplinary authority evident from the letter of
August 8, 2013 on the ground that the appellant had ordered the motorman’s
“detention/arrest”. The order of punishment did not spell out such reason; the
preliminary report expressly found there was no order of detention; and, there
was no finding as to any order of detention in the inquiry report.
29. The more alarming feature is that the court of the first instance may have
missed the wood for the trees in its narration of the sequence of events without
noticing that the detailed representation of the appellant against the inquiry
report had neither been alluded to by the disciplinary authority nor even
considered in imposing the punishment on the appellant. Equally, the court of
the first instance failed to notice that even the consideration of the appeal –
whether it was an appeal or a reconsideration in the nature of review – was just
as fallacious as being uninformed by reasons and no reasons being forwarded to
the person who suffered prejudice thereby.
30. Indeed, though the said Rules of 2007 have been referred to in the
impugned judgment and the pedantic reference to some its provisions in the
letters issued by the High Court has also been noticed, the scope of such rules or
the procedure envisaged thereunder did not engage the attention of the court of
the first instance. It is in the said Rules of 2007 that the key to the matter may
lie.
31. The said Rules of 2007, published on July 12, 2007, apply to members of
the West Bengal Judicial Service, including erstwhile members of the West
Bengal Civil Service (Judicial) and the West Bengal Higher Judicial Service. Rule
2(1)(c) of the said Rules of 2007 defines “Disciplinary authority” to mean “the
authority competent under these rules to impose penalty on a Judicial Officer.”
The appellate authority, under Rule 2(1)(a) of the said Rules of 2007 is shown to
be the Governor of the State. Rule 10 of the said Rules of 2007 deals with
penalties which are classified as minor and major penalties. The three last
categories of punishment, in the ascending order of harshness are compulsory
retirement, removal from service and dismissal from service. The distinction
between removal from service and dismissal from service, neither case being
relevant for the present purpose, is that in case of the former there would be no
disqualification from future employment, but in case of the latter, such
disqualification would operate. Rule 11 of the said Rules lays down the procedure
for imposing major penalties. The procedure envisaged in Rule 11 of the said
Rules of 2007 was followed in this case till the filing of the inquiry report and the
forwarding of such report by the disciplinary authority to the appellant and
calling upon the appellant to make a representation on the findings of the inquiry
report. However, Rule 11(19) of the said Rules of 2007 in its use of the
expression, “intimating the punishment proposed”, mandates that the nature of
the punishment that could be meted out to the delinquent is required to be
indicated. This was not done by the notice of March 7, 2013 which merely
demanded of the delinquent to furnish his representation “as to why the Report
shall not be accepted and you should not be suitably punished.” The said rules
were framed in 2007 and long after the Forty-second Amendment to the
Constitution of 1976 in respect of Article 311 of the Constitution, if such
provision is at all relevant for the present purpose.
32. Even if such discrepancy were to be disregarded in the light of the
delinquent having sufficient notice that it was a major punishment that could be
imposed on the delinquent for the perceived acts of delinquency, what cannot be
glossed over is the subsequent subjective satisfaction of the disciplinary
authority that the charges against the delinquent had been proved without any
reasons being furnished in support thereof or any objective consideration of the
representation of the delinquent being reflected in the decision. The records were
called for from the High Court administration in course of the present appeal and
there is nothing more evident from the records as to how the representation of
the appellant against the inquiry report was considered than what is evident from
the terse decision itself. Even if reasons were found to exist in the file it would
not have sufficed for such reasons would not have been worth the paper they
were printed on if they had not been furnished to the delinquent. Astonishingly,
it is discovered that no reasons actually exist.
33. It is a cardinal principle in a system governed by the rule of law that a
decision has to be founded on reasons that reflect the application of the mind to
the matters in issue; for, it is the reasons that are to be considered in assessing
the decision and the decision falls if the reasons in support thereof are found
lacking. In the present case there are no reasons at all for the decision to stand.
After all, it is the “why” of the reasons that props up the “what” of a decision; and
when no reasons are found, the decision hangs in thin air.
34. It is true that the decision in this case is the collective and unanimous
decision of the full complement of the then judges in this court – of persons who
are professional judges and tasked by the Constitution to judge. But the same
Constitution and the morality that it expresses through its provisions pertaining
to the equality and fairness, makes no exception for dispensing with reasons in
an administrative matter pronounced upon by judges appointed under the
Constitution. Where the authority in such regard is not mandated by the lex
suprema, constitutional functionaries cannot arrogate the power unto
themselves. On the contrary, constitutional authorities need to adhere more to
the constitutional requirements.
35. Article 235 of the Constitution gives every High Court the control over the
subordinate courts in the State or States governed by the relevant High Court. In
accordance with such provision, it is the High Court which is the disciplinary
authority in matters pertaining to judicial officers in the State and the High Court
in such a situation means the full complement of the judges in the High Court.
On the administrative side, the High Court, as the collective, functions either on
the basis of the decisions of a group of judges constituting the Administrative
Committee or in its full complement. Every decision on matters, which under the
Rules of this High Court on its Appellate Side, are delegated for the consideration
by the Administrative Committee, needs to be ratified by the Full Court. The
expression Full Court is a euphemism implying all the judges of the High Court.
Ordinarily, a Full Court meeting is where all the judges attend or a meeting
where all the judges are called upon to attend and a requisite quorum is
achieved. In matters pertaining to resolutions of the Administrative Committee,
usually, such resolutions would be circulated to all the judges in the High Court
and, if there is no objection, by virtue of the principles governing the passing of
resolutions in circular, such resolutions are deemed to have been carried and
become the decisions of the High Court. If there is even a solitary objection from
the junior-most judge, the matter has to go to a Full Court meeting where all
judges are called upon to attend. Decisions are carried as per the majority
opinion of the house at Full Court meetings, subject to the requisite quorum
being achieved.
36. The procedure of functioning on the basis of the recommendations of the
Administrative Committee has been devised as a matter of convenience. The
Administrative Committee is manned by senior judges as may be inducted by the
Chief Justice and everyday matters pertaining to the administration of the
District Judiciary go first to the Administrative Committee. In the usual course,
the decisions of the Administrative Committee are circulated, almost invariably
without the papers in support of the decision being circulated simultaneously. It
is, however, open to any judge to call for the papers relating to any resolution for
the judge to look into the same in course of deciding whether to accept or
disagree with the resolution of the matter as proposed by the Administrative
Committee. Experience shows that such resolutions by circulation, when they
deal with routine matters – disciplinary proceedings have now become regular
and, as such, routine – other judges tend to go by the wisdom of the
Administrative Committee, considering the seniority and experience of the
persons constituting such committee; and only the odd decision of the committee
is objected to for the matter to go to a Full Court meeting. In a sense, most
decisions passed by circulation are the majority decisions of the Administrative
Committee that are, more often than not, passively endorsed by the remaining
judges of the High Court.
37. The procedure would also have sufficed in this case if the decision of the
disciplinary authority (that is, of the full complement of the judges of the High
Court), had been founded on the reasons indicated in any decision of the
Administrative Committee. The overall decision of the remaining judges then
would have endorsed the reasons furnished by the Administrative Committee and
such reasons would have been the reasons of the entire collective. But reasons
cannot be substituted by the ipse dixit of the decision-making body, however
mighty and wise the decision-making body may be and even it is the full
complement of judges in a High Court. Rule 11(20) of the said Rules of 2007 in
its opening limb contains the words, “Upon consideration of the representation”.
Any consideration of a representation would imply the assessment of the grounds
urged in the representation and the rejection thereof on cogent basis if a
punishment were to be imposed on a perceived delinquent despite his
representation to the contrary. Further, the consideration must also reflect why
one form of punishment was preferred to the other; at least why a harsher form
of punishment was found to be more suitable in the circumstances than the less
harsh forms. Rule 10(b) of the said Rules of 2007 lays down five forms of
punishment: compulsory retirement being the third of the five. Even if the
procedure under Rule 11 pertaining to major penalties were to be followed, the
consideration of the representation of a perceived delinquent by the disciplinary
authority ought to reflect, apart from the finding of guilt against the delinquent,
why a particular mode of punishment was found suitable than the others.
38. The order of punishment in this case is singularly lacking on both counts:
it does not indicate how the guilt of the appellant herein was established and how
the punishment of compulsory retirement was called for in the circumstances.
39. The appellant was dissatisfied with the order of the disciplinary authority,
including the order of punishment handed down to him. The appellant carried an
appeal from the relevant order. As it turns out, the appeal under the said Rules
of 2007 is not even from Caesar to Caesar’s wife; it is from Caesar and back to
Caesar himself. The said Rules of 2007, in its appellate provision, begs the
question as to why the Governor is made the authority for a purely decorative
purpose.
40. The appellate provision in Rule 19 of the said Rules of 2007 permits a
judicial officer aggrieved by any order made by the disciplinary authority to prefer
an appeal to the Governor. Rule 16(3) of the said Rules of 2007 obliges the
Governor to forward the memorandum of appeal to the High Court and the
resulting opinion of the High Court is binding on the Governor. The relevant subrule
provides thus:
“16. Appeal. – 1. …
2. …
3. The Governor on receipt of the memorandum of
appeal from the aggrieved Judicial Officer, shall forward
the same to the High Court for its opinion and on receipt
of the opinion from the High Court, the Governor shall
decide the appeal in accordance with the opinion duly
forwarded by the High Court.
…”
41. To begin with, there is an anomaly in Rule 16 and the dissimilar treatment
of appeals from major penalties and appeals from minor penalties as evident
therefrom. Even though on a reading of the entirety of Rule 16, the intention
therein appears to be that the Governor would be the appellate authority only in
respect of orders imposing major penalties, the wording of Rule 16(1) appears to
be somewhat wanting in such regard, particularly in its use of the expression
“any order” and the subsequent use of the words “including”. Be that as it may.
42. Returning to Rule 16(3) of the said Rules of 2007, the appellate provision
really amounts to a provision for review or reconsideration. This may be in
keeping with a judgment of the Supreme Court that is noticed later, but it defies
logic to have an appeal provision that is really one for review. The provision could
have been more forthright and fashioned as a review. The considerations, as
every judge should know, are entirely different in an appeal than in a review. If
the reconsideration of the decision as an appeal has to be undertaken by the
High Court under the appeal provision, it cannot be regarded as a review.
43. There is no doubt that under the scheme of Article 235 of the Constitution
it is the High Court, and the High Court alone, that exercises administrative
control over the subordinate courts in the District Judiciary and the judicial
officers manning the same. Equally, it is axiomatic that the opinion or the
decision of the High Court in matters pertaining to the administration of justice,
including decisions on judicial officers in the District Judiciary, is binding on the
State Government. Thus, when the High Court recommends the promotion of a
judicial officer or the dismissal from service or other punishment regarding any
judicial officer, the executive branch of the Government has no say in the matter
and the Governor as the titular appointing authority has to abide by such
decision or advice of the High Court. But it is one thing to say that the Governor
is bound by the decision of the High Court and quite another for the Governor to
exercise due authority if the Governor is the named appellate authority in the
rules. The functioning of the Governor as the appointing authority may be quite
distinct from the functioning of the Governor as the appellate authority. If any
rules confer authority on the Governor as the appellate authority over a decision
of the High Court, the decision of the Governor in his capacity as appellate
authority may not be in conflict with his limited authority available in view of
Article 235 of the Constitution. However, Rule 16(3) of the said Rules of 2007
does not confer any independent authority that is usually vested in a named
appellate authority but merely makes the Governor’s office a route for the
passage of the appeal through such office to the High Court and the
communication of the High Court’s opinion upon reconsideration to the appellant
through such office. But that cannot detract from the quality of the reassessment
which must be seen to be in excess of what is permissible under a review since
the authority is expressed in the rules as appellate authority.
44. In the High Court, as the disciplinary authority in this case, having failed
to furnish any reasons in support of its decision in the order of punishment and,
again, in the High Court not indicating any or any further reasons while
reconsidering the matter upon the appeal being forwarded by the Governor, the
order of punishment cannot be sustained. Indeed, it is not even evident from the
records produced by the High Court whether the decision in the appeal is a
decision of the collective or the full complement of the judges of this court.
45. The necessary corollary to this is whether, after 12 years of the incident,
the matter must now be remanded to the disciplinary authority for it to consider
it afresh. In between, the appellant had suffered an order of suspension which
was revoked as a reason of the delay in the completion of the proceedings; but
the appellant has suffered severance following the decision of the disciplinary
authority which has remained undisturbed till date.
46. It is here that the judgments cited by the parties and by Learned
Advocate-General, who was requested to assist the court in this matter, need to
be noticed and understood so that they may be a guide to the ultimate decision
that is taken here. The submissions of the parties are reflected in the reports and
have been appropriately recorded in the judgment under appeal and there is no
need for any repetition.
47. Apart from the several provisions of the Criminal Procedure Code and the
Railways Act that the appellant has placed to demonstrate that the appellant, as
a Magistrate, had due authority to conduct an inquiry and take appropriate steps
for the larger good, the appellant has referred to a judgment reported at (1981) 2
SCC 577 (Rachapudi Subba Rao v. The Advocate-General, AP) to suggest that a
judicial officer, acting in discharge of his official duty in good faith and believing
to be possessed with the requisite authority, is protected under Section 1 of the
Judicial Officers’ Protection Act, 1850 and cannot be hauled up on such ground.
48. The appellant also places a judgment reported at (2012) 5 SCC 242 (Vijay
Singh v. State of UP). In that case, a ground urged by the delinquent was not
considered by the revisional authority. Such non-consideration prompted the
Supreme court to observe as follows at paragraph 17 of the report:
“17. … Undoubtedly, the statutory authorities are under the
legal obligation to decide the appeal and revision dealing with
the grounds taken in the appeal/revision etc., otherwise it
would be a case of non-application of mind.”
The appellant submits that both the disciplinary authority and the appellate
authority do not appear to have dealt with the grounds urged by the appellant in
his defence and such decisions would amount to non-application of mind.
49. A further judgment, reported at (2010) 11 SCC 278 (Indu Bhushan Dwivedi
v. State of Jharkhand), is cited by the appellant to emphasise on the scope of the
consideration by the disciplinary authority being confined to the charges brought
against the delinquent. In that case certain charges were levelled against the
delinquent judicial officer. The inquiry report indicated some of the charges to
have been proved. The High Court accepted the inquiry report and a show-cause
notice was issued to the delinquent for imposition of a major penalty. After
considering the delinquent’s reply, the High Court recommended his dismissal
from service. The concerned judicial officer challenged the order by contending
that the same was vitiated due to violation of the principles of natural justice
since the High Court, while recommending his dismissal, had considered uncommunicated
adverse remarks recorded in some annual confidential reports
without informing the delinquent that such material was being relied upon. While
dealing with the issue as to whether the consideration of the past adverse records
of the judicial officer had the effect of vitiating the order, the Supreme Court
found that the exact question was considered and answered in the affirmative by
a Constitution Bench in the judgment reported at AIR 1964 SC 506 (State of
Mysore v. K. Manche Gowda). The court then went on to hold as follows, at
paragraph 23 of the report:
“23. When it comes to taking of disciplinary action against a
delinquent employee, the employer is not only required to
make the employee aware of the specific imputations of
misconduct but also disclose the material sought to be used
against him and give him a reasonable opportunity of
explaining his position or defending himself. If the employer
uses some material adverse to the employee about which the
latter is not given notice, the final decision gets vitiated on the
ground of the violation of the rule of audi alteram partem. …”
50. The High Court refers to a judgment reported at (1995) 6 SCC 749 (B. C.
Chaturvedi v. Union of India) and places paragraphs 12 and 13 from the report to
emphasise on the limited scope of judicial review available in this jurisdiction.
The judgment instructs that when the disciplinary authority accepts the evidence
gathered by the inquiry officer and concludes that the guilt of the delinquent
receives support therefrom, the court in its power of judicial review will not act as
an appellate authority to re-appreciate the evidence or arrive at its own
independent findings on the evidence. The room for interference would be where
the authority held the proceedings against the delinquent in a manner
inconsistent with any rule of natural justice or in violation of the statutory rules
prescribing the mode of inquiry or where the conclusion or findings reached by
the disciplinary authority are based on no evidence.
51. Another judgment, reported at (2007) 4 SCC 627 (UP SRTC v. Ram Kishan
Arora), has been carried by the High Court to demonstrate that it is not the
decision but the decision-making process that is scrutinised in this jurisdiction
under Article 226 of the Constitution. This was a case of the High Court reducing
the punishment without assigning any reasons and the Supreme Court observed
that the High Court could not have substituted its opinion for that of the
disciplinary authority.
52. The High Court submits that when there is a grave charge as in the
present case which is brought against a delinquent officer, even the nonfurnishing
of the inquiry report to the delinquent officer is glossed over unless it
is perceived to have resulted in grievous prejudice or serious miscarriage of
justice. For such purpose, the judgment reported at (2001) 6 SCC 392 (State of
UP v. Harendra Arora) has been placed. Another judgment, reported at (1993) 4
SCC 727 (Managing Director, ECIL, Hyderabad v. B. Karunakar), has been cited
by the High Court for the proposition that if a key function has been missed out
by the disciplinary authority or if there is a grave error at any stage, the court
may remand the matter to the disciplinary authority to rectify the mistake and
complete the proceedings from such stage.
53. Learned Advocate-General, who has assisted the court upon invitation, has
confined his submission to the broad parameters that govern the assessment of a
challenge to an order of punishment in disciplinary proceedings in the
jurisdiction exercised under Article 226 of the Constitution. The veritable
textbook in this jurisdiction has been relied upon by referring to the celebrated
judgment reported at AIR 1956 Cal 662 (A.R.S. Choudhury v. The Union of India).
Several paragraphs from the report have been placed to demonstrate what the
procedure ought to be and what would amount to reasonableness or adherence
to the rules of natural justice by referring to the four main stages of charge,
investigation of the charge, finding and punishment. The judgment explains the
activity that is undertaken at each stage and, except for a minor part which has
been rendered inconsistent upon the Forty-second Amendment to the
Constitution being effected, how the matter ought to progress through the
various stages as recognised in the judgment still remains the ultimate guide.
54. As to the provision of appeal in the said Rules of 2007, learned Advocate-
General has referred to a judgment reported at (1996) 5 SCC 90 (T. Lakshmi
Narasimha Chari v. High Court of Andhra Pradesh) where the provision in the
corresponding rules of Andhra Pradesh provided for an appeal to the Governor
without such provision expressly specifying the scope of the authority of the
Governor in course of such appeal. The relevant provision was interpreted by the
Supreme Court to imply “that the appeal to the Governor against the order of the
High Court provides for reconsideration of the High Court’s order by the
Governor, but in keeping with the requirement of Article 235 that the power of
control over persons belonging to the judicial service of a State vests in the High
Court, and that the appeal must be decided by the Governor only in accordance
with the opinion of the High Court.” It appears that Rule 16(3) of the said Rules
of 2007 applicable to judicial officers in this State is inspired by such judgment
of the Supreme Court and expressly provides for the Governor to forward the
appeal to the High Court and be guided by the opinion of the High Court thereon.
55. Learned Advocate-General has also referred to judgments of the Supreme
Court that instruct that the High Court on its judicial side must exercise extreme
care and caution before upsetting a collective decision of the judges of the same
High Court on the administrative side. For such purpose, a judgment reported at
(1999) 4 SCC 579 (High Court of Punjab and Haryana v. Ishwar Chand Jain) has
been first placed. That case pertained to a judicial officer being compulsorily
retired on the basis of his performance record. The Supreme Court observed that
“where the Full Court of the High Court recommends compulsory retirement of
an officer, the High Court on the judicial side has to exercise great
circumspection in setting aside the order”. However, the court also went on to
add that in a case of perceived doubtful integrity of a judicial officer, evidence
may not be forthcoming “and at times the Full Court has to act on the collective
wisdom of all the Judges.”
56. In similar vein, in the judgment reported at (2003) 9 SCC 592 (Syed T.A.
Naqshbandi v. State of Jammu and Kashmir), the Supreme Court held that
“Neither the High Court nor this Court … could or would at any rate substitute
themselves in the place of the Committee/Full Court of the High Court
concerned, to make an independent reassessment of the same, as if sitting on an
appeal”. Again, that was a case of a promotion or a higher grade being awarded
to a judicial officer which was under challenge. In another case, reported at
(2012) 6 SCC 357 (Registrar General, High Court of Patna v. Pandey Gajendra
Prasad), the Supreme Court observed that for a decision of the Full Court to be
reversed by the High Court on the judicial side, the decision has to be “so
arbitrary, capricious or so irrational so as to shock the conscience of the Division
Bench to justify its interference.” That was a case of removal from service of a
Railway Judicial Magistrate upon finding gross misconduct on his part in certain
judicial orders.
57. Learned Advocate-General has also referred to a judgment reported at
(2011) 10 SCC 1 [Rajendra Singh Verma v. Lieutenant Governor (NCT of Delhi)]
wherein similar observations were made by the Supreme Court in a matter where
several judicial officers who had been compulsory retired on the basis of their
performance records had challenged the relevant order. In a further judgment,
reported at (2000) 1 SCC 416 (High Court of Judicature at Bombay v. Shashikant
S. Patil), where the compulsory retirement of a judicial officer was challenged, the
Supreme Court frowned on the Division Bench of the Bombay High Court
interfering with the decision of a committee of five judges as endorsed by the Full
Court. The matter pertained to an innocent litigant being wrongfully arrested,
handcuffed and paraded in public. The inquiry report exonerated the judicial
officer of the charges. However, the disciplinary committee of the Bombay High
Court (consisting of five judges of that court) disagreed with the inquiry report
and caused a notice to be issued to the judicial officer calling upon him to show
cause why the findings of the inquiry officer should not be repudiated and a
major penalty of dismissal from service imposed on him. Upon the decision of the
disciplinary committee to compulsorily retire the judicial officer being challenged,
a Division Bench of the Bombay High Court set aside the same on the ground
that “when the disciplinary authority differs from the findings of the enquiry
officer, it has to discuss the entire case threadbare and establish that each
finding of the enquiry officer was totally improbable …”. The Supreme Court
disagreed. It held that the findings of an inquiry officer are not binding on the
disciplinary authority and the disciplinary authority could disagree with such
findings, hold that the charges framed were prima facie proved and issue a notice
to the delinquent in that regard for the matter to be considered on the
delinquent’s response.
58. Learned Advocate-General has placed a judgment reported at (1988) 3 SCC
211 (Registrar, High Court of Madras v. R. Rajiah) to indicate the circumstances
when interference is warranted in service law in course of judicial review.
Paragraphs 21 and 22 of the report have been placed where the Supreme Court
held that the adequacy or sufficiency of the material on which a decision is
founded cannot be questioned in judicial review, unless the material is absolutely
irrelevant. However, the court went on to add as follows at paragraph 22 of the
report:
“22. … If there be no material to justify the conclusion, in that
case, it will be an arbitrary exercise of power by the High
Court. Indeed, Article 235 of the Constitution does not
contemplate the exercise by the High Court of the power of
control over subordinate courts arbitrarily, but on the basis of
some materials. As there is absence of any material to justify
the impugned orders of compulsory retirement, those must be
held to be illegal and invalid.”
59. What must be kept in mind is that the disciplinary proceedings initiated
against the appellant herein pertained to a particular incident. The charges
against the appellant did not involve any matter of moral turpitude or even the
performance of the appellant as a judicial officer. In most of the cases referred to
above, when charges of moral turpitude or poor performance of a judicial officer
have been levelled, the Supreme Court has observed that the collective wisdom of
the High Court should not be tinkered with since judges would be aware of such
aspects of the concerned judicial officer and overwhelming material in such
regard may be difficult to obtain. In the same breath, however, the Supreme
Court has instructed that when a decision is based on no material at all or no
reasons are furnished, it can be said to be arbitrary or capricious.
60. It is here that the considerations that weighed with the High Court as the
disciplinary authority in finding the appellant guilty and inflicting the
punishment of compulsory retirement must be scrutinised. For such purpose,
the only material available is what is contained in the letter dated August 8,
2013. It is such finding that has to be linked to the charges brought against the
appellant, if the decision embodied in the letter of August 8, 2013 has to stand.
61. There is no doubt that the appellant entered the motorman’s cabin on the
relevant date for a purpose. That is evident from the several statements of the
appellant. He apparently intended to redress what he perceived was wrong.
Whether it was the youthful exuberance of a fledgling judicial officer or the
innocence of his age that prompted him to imagine that he could rid the system
of the malaise, the appellant appears to have thought that it was within the
bounds of his judicial authority as a Railway Magistrate to address the issue.
This defence was not taken by the appellant as an after-thought to camouflage
the arrogance of authority that he was seen to have flaunted, but is
substantiated by the initiation of two sets of proceedings almost immediately
upon the appellant reaching Sealdah Station on the relevant day. Even if what
the appellant set about to do may be regarded as completely flawed, it must be
seen that his action may not have been guided by any personal motive. In his
book, the appellant was trying to correct the malady that regularly brought grief
to the public, particularly the persons availing of the relevant train at a busy time
of the day. The appellant did not stand to gain anything if, as a result of his
action, the regular delay in the running of the relevant train was corrected.
62. In course of the inquiry and in his response to the notice issued by the
disciplinary authority, the appellant referred to several provisions, including from
the Criminal Procedure Code, that the appellant perceived gave the appellant due
authority to address the issue. At the highest, the appellant may have been
wrong in his perception and may have erroneously assumed jurisdiction in
respect of a matter that did not fall within his judicial domain. But the incident
had nothing to do with the sense of morality or integrity of the appellant nor
could he have been seen to have embarked on the exercise for personal
aggrandisement or like motive. There was no evidence or finding that he had ever
entered the motorman’s cabin on any other occasion. He did not force his entry
into the cabin. He thought he had due authority to call for reports from the
motorman and the guard as to the regular delay in the running of the relevant
train and it appears that he directed the railway police to ensure the presence of
the motorman and the guard in his court so that the appropriate reports could be
filed by them.
63. It may have been wrong on the appellant’s part to try to use his judicial
office to right what he perceived was a public wrong. Indeed, most Indians look
the other way even when a crime is committed in their presence or a grievous
wrong is done, lest they be dragged into any avoidable court proceedings. This
judicial officer foolishly thought that he could single-handedly take on the
smuggler mafia.
64. As regards the second charge, the first part pertained to the appellant
asking the driver of the train about the reasons for the late running of the train
the thereby exceeding his jurisdiction. The second part of the charge was that he
obtained reports on the late running of the train from the driver and the guard
and that the driver and the guard were taken to the railway police station and to
the Railway Magistrate’s court pursuant to the appellant’s illegal verbal order. All
the three acts of the appellant complained against in the two articles of charge,
and which stood proved in the opinion of the inquiry officer and are deemed to
have been endorsed by the disciplinary authority, pertained to the same matter of
the appellant seeking to redress a perceived wrong for public good. That there
was a violent demonstration at the Sealdah station or that the train services were
disrupted for some time on the relevant day in the Sealdah division, were not the
handiwork of the appellant; nor could the appellant have reasonably
apprehended the same. If the appellant had acted illegally or in an unauthorised
manner, the appellant’s initiation of the relevant proceedings could have been
challenged in accordance with law. But once it was evident that the appellant
had assumed authority in his judicial capacity – however erroneous he may have
been – the punishment of compulsory retirement appears to be grossly
disproportionate and shocking. Indeed, as would be evident from the disciplinary
authority’s order communicated to the appellant on August 8, 2013, it is the
disruption of train services which seems to have weighed with the disciplinary
authority. For good measure, the disciplinary authority’s order also referred to
the conduct of the appellant “tarnishing the image of the judiciary in the
estimation of the member of public”. This was not something that the judicial
officer had been charged with.
65. The decision of the High Court upon reconsidering the matter is equally
confusing, particularly in its reference to “outcome of the majority rule
countermeasuring with the quantum of guilt”. From the records of the High
Court as produced in course of this appeal, it does not even appear that the
opinion of the High Court communicated to the Governor was circulated to or
had the approval of the judges of the High Court. Most importantly, on neither
occasion did the High Court indicate the slightest of reasons or any application of
mind as to why it endorsed the findings of the inquiry officer or rejected the
contentions of the appellant or even why such a harsh of punishment was called
for in the circumstances. After all, it was also the finding of the inquiry officer
that there was no evidence of the appellant having entered the motorman’s cabin
on any other occasion.
66. The disciplinary authority erred in not communicating the proposed
punishment to the appellant in accordance with the said Rules of 2007. The
disciplinary committee appears not to have applied its mind at all to the detailed
representation of the appellant against the inquiry report where the appellant
quoted from the inquiry report to indicate how some of the findings were not
based on the material gathered in course of the inquiry or were based on
erroneous or extraneous material. Further, the terse order of punishment of the
disciplinary authority did not dwell on any of the four acts contained in the two
articles of charge that were found to have been established in course of the
inquiry. The four acts found to have been established in course of the inquiry
were: the unauthorised entry of the appellant in the motorman’s cabin; the
unauthorised questioning of the driver regarding the late running of the train;
the unauthorised obtaining of the reports from the motorman and guard of the
relevant train; and, the unauthorised direction to the railway police to produce
the motorman and the guard before the Railway Magistrate’s court and the
taking of the motorman and the guard to the railway police station following the
appellant’s direction. The violent demonstration at the Sealdah station and the
disruption of train services in the Sealdah division were indicated in the chargesheet
or show-cause notice to be consequences of the appellant’s conduct and
were not cited as the grounds of misconduct by the appellant.
67. In the cryptic order of punishment passed by the disciplinary authority,
there was no reference to any of the perceived unauthorised action of the
appellant as found to have been established in the inquiry report. There was only
a reference to the violent demonstration and a further reference to the disruption
of the train services with the additional reference to the image of the judiciary
being tarnished in the estimation of the members of public. This additional part
did not form a part of the charges levelled against the appellant, nor was the
appellant called upon or given any opportunity to address such matter.
Tarnishing the image of the judiciary is a serious charge and the disciplinary
authority could not have jumped to the conclusion or founded its decision on
such ground when no charge on such count was presented against the appellant.
68. Indeed, the handling of the matter by the High Court may have left the
appellant both bemused and betrayed. A possible union leader, P. K. Singh, led a
group of indisciplined railway employees to chant slogans against the Railway
Magistrate for the Railway Magistrate’s grievous fault of trying to correct what he
perceived was a wrong to the public. The disruption of train services appears to
have been after P. K. Singh was detained. P. K. Singh had been detained for his
unruly behaviour in the Railway Magistrate’s court for which separate
proceedings were instituted and neither charge brought against the appellant
referred to such matter. Rather than the judicial officer being protected by the
High Court against the act of insult and intimidation faced by him in the Railway
Magistrate’s court by unruly railway employees, it was the Railway Magistrate
who was pushed to the dock to suffer for wanting to remedy a public wrong. At
any rate, the appellant may have acted in error or in excess of the authority that
he perceived to possess but even the preliminary report said that it did not find
that the appellant acted in bad faith or with any malicious intention. The
preliminary report expressly said so. The inquiry report endorsed the preliminary
report. Even the disciplinary authority did not expressly find the appellant to
have acted in bad faith or with any malice.
69. In the light of the above, the order of the disciplinary committee finding the
appellant guilty of the charges brought against him cannot be sustained. As a
consequence, the punishment inflicted on the appellant, which is otherwise
found to be disproportionate and shocking even if the guilt was established, is set
aside. The decision of the appellate authority is quashed. The judgment and
order impugned dated July 14, 2017 is set aside and the writ petition is allowed
to such extent.
70. The appellant is to be reinstated in service immediately and the appellant
should be considered to have been in continuous service without any break. The
appellant will be entitled to all benefits and promotion as if no disciplinary
proceedings had been initiated against the appellant, save the full complement of
his salary. The appellant will be paid 75 per cent of the salary that he would have
earned had he remained in service, since it does not appear that the appellant
had taken up any alternative work in the interregnum. Though the appellant did
not render any service, his punishment was unjustified and, at any rate, grossly
disproportionate to the conduct complained of. The appellant appears to have
used some of the time to obtain a Master’s degree.
71. The court appreciates the erudite and impartial assistance rendered by
learned Advocate-General in the matter.
72. FMA 26 of 2019 is allowed as above with costs assessed at Rs.1 lakh to be
paid by the High Court to the appellant.
73. Certified website copies of this judgment, if applied for, be urgently made
available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.)
I agree.
(Suvra Ghosh, J.)
Later:
A stay of the operation of the order is prayed for by the High Court, which
is considered and declined.
(Sanjib Banerjee, J.)
I agree.
(Suvra Ghosh, J.)
appellant both bemused and betrayed. A possible union leader, P. K. Singh, led a
group of indisciplined railway employees to chant slogans against the Railway
Magistrate for the Railway Magistrate’s grievous fault of trying to correct what he
perceived was a wrong to the public. The disruption of train services appears to
have been after P. K. Singh was detained. P. K. Singh had been detained for his
unruly behaviour in the Railway Magistrate’s court for which separate
proceedings were instituted and neither charge brought against the appellant
referred to such matter. Rather than the judicial officer being protected by the
High Court against the act of insult and intimidation faced by him in the Railway
Magistrate’s court by unruly railway employees, it was the Railway Magistrate
who was pushed to the dock to suffer for wanting to remedy a public wrong. At
any rate, the appellant may have acted in error or in excess of the authority that
he perceived to possess but even the preliminary report said that it did not find
that the appellant acted in bad faith or with any malicious intention. The
preliminary report expressly said so. The inquiry report endorsed the preliminary
report. Even the disciplinary authority did not expressly find the appellant to
have acted in bad faith or with any malice.
69. In the light of the above, the order of the disciplinary committee finding the
appellant guilty of the charges brought against him cannot be sustained. As a
consequence, the punishment inflicted on the appellant, which is otherwise
found to be disproportionate and shocking even if the guilt was established, is set
aside. The decision of the appellate authority is quashed. The judgment and
order impugned dated July 14, 2017 is set aside and the writ petition is allowed
to such extent.
70. The appellant is to be reinstated in service immediately and the appellant
should be considered to have been in continuous service without any break. The
appellant will be entitled to all benefits and promotion as if no disciplinary
proceedings had been initiated against the appellant, save the full complement of
his salary. The appellant will be paid 75 per cent of the salary that he would have
earned had he remained in service, since it does not appear that the appellant
had taken up any alternative work in the interregnum. Though the appellant did
not render any service, his punishment was unjustified and, at any rate, grossly
disproportionate to the conduct complained of. The appellant appears to have
used some of the time to obtain a Master’s degree.
71. The court appreciates the erudite and impartial assistance rendered by
learned Advocate-General in the matter.
72. FMA 26 of 2019 is allowed as above with costs assessed at Rs.1 lakh to be
paid by the High Court to the appellant.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
JUSTICE SANJIB BANERJEE
And
JUSTICE SUVRA GHOSH
FMA 26 of 2019
MINTU MALLICK Vs HON’BLE HIGH COURT AT CALCUTTA AND OTHERS
Date: July 4, 2019.
SANJIB BANERJEE, J. : –
When Mintu Mallick stepped out of his home and hopped across to the
Lake Gardens railway station on the morning of May 5, 2007 to take a train to
workplace Sealdah station, little did he know that he had embarked on an ordeal
that would last a decade and more and would haunt him for the rest of his life.
Mallick was then enjoying the dual charge of Judicial Magistrate, 4th Court and
Railway Magistrate, Sealdah. The Railways Magistrate’s court in Sealdah is
within the precincts of the station. According to Mallick, the particular Up Budge
Budge-Sealdah local that he intended to take was late and, upon speaking to the
locals who regularly availed of the suburban rail services on the route, he
discovered that the train was invariably late. Mallick claims that he was also
informed that the usual late running of such train was due to it stopping illegally
somewhere after the New Alipore station when contraband material would be offloaded
from the train and the drivers and guards played ball with smugglers to
facilitate the spurious trade.
2. Mallick felt that as the Railway Magistrate posted at Sealdah, which
housed the headquarters of the relevant suburban division, he had the authority
to inquire into the matter and set the perceived wrong right. When the relevant
train arrived at the Lake Gardens station at about 10.16 am, Mallick thought it
fit to enquire of the driver as to the reasons for the delay and get to the bottom of
what he perceived to be a malaise. He knocked on the door of the driver’s cabin,
was allowed entry therein upon disclosing his identity and travelled in the
driver’s cabin to Sealdah station. In course of the journey, Mallick apparently
quizzed the driver as to the delay on that day and whether such delay was usual
and the reasons therefor. Mallick claims that he did not get any satisfactory
answer to his questions, whereupon he instructed the driver to contact the guard
of the train and for both the driver and guard to report to the Railway
Magistrate’s court in Sealdah so that the matter could be appropriately
addressed.
3. According to Mallick, the driver of the train was angry that he had to
attend the Railway Magistrate’s court or report on a matter that the driver
thought was routine and not unusual. At the insistence of Mallick, the driver
contacted the guard, but the driver made his feelings clear that he did not
appreciate Mallick’s intervention and Mallick got the impression that the driver
would not pay heed to Mallick’s request to report to the Railway Magistrate’s
court. It was in such circumstances, according to Mallick, that he directed the
railway police immediately upon disembarking at Sealdah station to ensure that
the driver and the guard of the train were presented before the Railway
Magistrate’s court. Mallick maintains that he did not instruct the railway police
personnel to either arrest the guard or the driver or to take them to the police
station within the Sealdah station, but the railway police personnel present
informed him that the driver and the guard would be taken to the Railway
Magistrate’s court after certain formalities were completed by the police
personnel. Mallick also asserts that the common room for guards and drivers at
the Sealdah station was then adjacent to the railway police station, both being on
the way to the Railway Magistrate’s court from the platform at which the relevant
train had terminated.
4. The guard and the driver were accompanied to the Railway Magistrate’s
court, whereupon they sought some time for submitting their reports. The
relevant reports were submitted within half an hour, by which time Misc. Case
No. 5 of 2007 had been suo motu instituted and registered by the Railway
Magistrate in respect of the late running of the relevant train. According to the
Railway Magistrate, at or about the time that the driver and the guard submitted
their reports and left the Railway Magistrate’s court, some railway employees,
particularly sky-blue-shirt-clad railway drivers, gathered in and around the
Railway Magistrate’s court, shouted slogans, used abusive language against the
Railway Magistrate and disrupted work in the court. These drivers, according to
Mallick, were led by a person later identified as P. K. Singh.
5. In view of what the Railway Magistrate perceived to be unruly and
unacceptable behaviour in his court and in his presence by railway personnel, a
second set of proceedings was initiated under Section 345 of the Code of Criminal
Procedure, 1973 which deals with the procedure in certain cases of contempt
when an act of contempt is committed in the view or in the presence of any civil,
criminal or revenue court. Such second case was initiated for an offence felt to
have been committed under Section 228 of the Penal Code, 1860 for intentional
insult or interruption to public servant sitting in judicial proceedings.
6. It has been the consistent case (both of the appellant and as evident from
the preliminary report of the High Court) that upon P. K. Singh being taken into
custody following the case instituted against him under Section 228 of the Penal
Code, violence erupted around the Railway Magistrate’s court. The agitating
railway personnel, mostly motormen and drivers, railed and ranted, brought
down the court’s nameplate, disconnected the electricity and water connection to
the Railway Magistrate’s court and his adjoining chambers and prevented the
staff at the Railway Magistrate’s court from even bringing in water in the hot
summer afternoon.
7. It also appears that the agitation led to the disruption of local train services
at the Sealdah station for a considerable period of time before normalcy was
restored late in the afternoon, some four or five hours after the delayed train from
Budge Budge arrived at the Sealdah station.
8. Following the incident and the High Court being informed of it, a discreet
inquiry was directed to the conducted which culminated in a preliminary report
being filed. On the basis of such preliminary report, Mallick was first suspended
and memorandum of charges were later issued on December 3, 2007 to the
concerned judicial officer. The articles of charge as framed must be seen in the
entirety, if only to assess the reasonableness of the steps and the action that
followed:
“Statement of Articles of Charge framed against Shri
Mintu Mallick, Judicial Magistrate, 4th Court-cum-Railway
Magistrate, Sealdah, South 24-Parganas (now under
suspension).
ARTICLE OF CHARGE NO. 1
That you, Shri Mintu Mallick, while functioning as
Judicial Magistrate, 4th Court-cum-Railway Magistrate,
Sealdah, South 24-Paraganas, unauthorisedly travelled in the
Motor Man’s Cabin in a Budge Budge–Sealdah Local Train
from the Lake Gardens Station to the Sealdah Railway Station
on May 5, 2007 and prima facie it appears that you as the as
Judicial Magistrate, 4h Court-cum-Railway Magistrate,
Sealdah, South 24-Parganas used to travel in the similar
fashion in the past without having any valid pass to enter
Motor Man’s Cabin having full knowledge that such
unauthorized travelling is unbecoming of a public servant and
also amounts to gross misconduct.
The allegation shows that you made improper and illegal
exercise of administrative powers so vested upon you as the
Judicial Magistrate, 4th Court-cum-Railway Magistrate,
Sealdah, South 24-Parganas and such allegations, if proved,
would amount to gross misconduct and such behavior on your
part as a public Servant is unbecoming of a Judicial Officer.
ARTICLE OF CHARGE NO. II
That you, Shri Mintu Mallick, unauthorisedly travelled
in the Motor Man’s Cabin in a Budge Budge –Sealdah Local
Train from the Lake Gardens Station to the Sealdah Railway
Station on May 5, 2007 and during the course of journey you
enquired about the reasons of the late running exceeding your
jurisdiction as a Railway Magistrate.
That you, obtained a report on late running of the trains
from both Sri Dipak Sanyal, the Motor Man and Sri Monoj
Kumar Mondal, the Guard of the said local train after the
arrival of the said Sealdah bound local train at Sealdah Station
at 10-45 a.m. The Railway employees started demonstration as
soon as the driver and the guard of that particular local train
were taken first to the Thana and thereafter to the Court
pursuant to your verbal order and it prima facie appears that
because of the aforementioned unauthorized activities on your
part, there was violent demonstration by the railway employees
resulting in total disruption of train services within Sealdah
Division from 11.15 a.m. to 3.45 p.m. on that day.
The allegation shows that you made improper and illegal
exercise of administrative as well as Judicial powers so vested
upon you as the Judicial Magistrate, 4th Court-cum-Railway
Magistrate, Sealdah, South 24-Parganas and such allegations,
if proved, would amount to gross misconduct and such
behavior on your part as a public Servant is unbecoming of a
Judicial Officer.”
9. In the statement of imputation of improper and unbecoming conduct
forwarded to the judicial officer in connection with the articles of charge, the
charges were, in effect, repeated. The first charge made out was that the judicial
officer had travelled in the motorman’s cabin in an unauthorised manner after
making forcible entry therein despite the objection of the concerned motorman;
that the judicial officer was in the habit of regularly travelling in the motorman’s
cabin despite being aware that it was illegal so to do. The second charge was that
the judicial officer had exceeded his jurisdiction in enquiring of the driver as to
the reasons for the late running of the train; that the judicial officer had
compelled the motorman and the guard to submit a report on the late running of
the train; and, that because of the unauthorised verbal direction of the judicial
officer that the driver and the guard of the relevant train be taken to the railway
police station and, thereafter, to the Railway Magistrate’s court, there was a
violent demonstration by the railway employees resulting in total disruption of
train services within the Sealdah division from 11.45 am to 3.45 pm on the
particular day. The statement of imputation informed the judicial officer in either
case that the relevant charge, if proved, “would show that you made improper
and illegal exercise of administrative powers … and such conduct on your part is
unbecoming of a Judicial Officer.”
10. The officer responded to the memorandum of charges by his detailed reply
of January 16, 2008. The substance of his reply has been referred to earlier in
this judgment. The officer claimed that it was his belief that he had the
appropriate authority as a Judicial Magistrate and as the Railway Magistrate
under both the Criminal Procedure Code and the Railways Act, 1989 read with
the rules framed thereunder to address a matter of public importance as the
regular delay in the running of a particular train that caused inconvenience to
members of the public. In his reply, the officer referred to the records of the two
sets of proceedings initiated by him: the first for the late running of the relevant
train; and, the other for the violent demonstration on the particular day in the
Railway Magistrate’s court and the contemptuous act of intimidation indulged in
by the railway employees led by a particular person.
11. The inquiry officer appointed by the High Court first examined the then
Registrar (Vigilance and Protocol) of the High Court who had conducted the
discreet inquiry and submitted the preliminary report following which the
charges were brought against Mallick. Such Registrar proved his report and
maintained in his deposition that the delinquent should not have questioned the
driver or guard regarding the delayed running of the train and the judicial officer
should not have required the railway police to take the guard or the driver to the
railway police station before causing them to attend the Railway Magistrate’s
court. It was such Registrar’s opinion that the Railway Magistrate should only
have asked the railway authorities to look into the matter regarding the late
running of the relevant train, if it was necessary at all; but the Railway
Magistrate had erred in proceeding with the matter himself which resulted in the
disruption of the train services at the Sealdah division on the particular day. The
Registrar emphasised that the Railway Magistrate’s entry and travel in the
motorman’s cabin was unauthorised. Though the Registrar accepted that he had
not imputed any malicious intention on the part of the delinquent officer as to
the manner in which he conducted himself on the particular day but it was his
opinion, upon his interaction with several personnel in course of the discreet
inquiry conducted by him, that the judicial officer was in the wrong and liable to
be proceeded against.
12. The inquiry officer examined several railway personnel including P. K.
Singh who suffered detention for a short while in the railway police station lockup
and Dulal Chandra Sarkar, the driver of the relevant train on which the
Railway Magistrate travelled on May 5, 2007. The driver admitted that on the
relevant day the train reached the Lake Gardens station at 10.16 am instead of
the scheduled time of 10.01 am. He accepted that he opened the door of the
motorman’s cabin and gave access thereto to the Railway Magistrate upon
discovering his identity but he also maintained that he called upon the Railway
Magistrate to demonstrate his authority to be in the motorman’s cabin, which the
Railway Magistrate failed to produce. He also accepted that he “could not offer
any explanation about the late running of train by 15 minutes to the Railway
Magistrate.”
13. The delinquent officer was also grilled in course of the inquiry. Such officer
substantially repeated what was contained in his detailed reply of January 16,
2008. The judicial officer referred to various provisions of the Criminal Procedure
Code, the Railways Act and the rules framed thereunder to substantiate his
perception that he had due authority to inquire into the matter of the delayed
running of a train and take remedial measures in such regard for the larger
public good.
14. The inquiry officer submitted his report on January 7, 2013. The inquiry
officer concluded, on the first charge, that the delinquent judicial officer had
travelled in the motorman’s cabin on the particular day in an unauthorised
manner since Rule 30608 of the AC Traction Manual framed under the Railways
Act precluded entry into the motorman’s cabin without due authority and
without a valid cab-pass. The inquiry officer, however, also held that there was
no evidence to establish that the delinquent officer indulged in such
unauthorised travel on a regular basis. Thus, qua the first charge brought
against the judicial officer, it was held that his entry in the motorman’s cabin on
the relevant train was unauthorised.
15. As to the second charge, the inquiry officer found that the same stood
substantiated as the Railway Magistrate had no legal sanction under the
Criminal Procedure Code or the Railways Act to take suo motu steps for the
delayed running of any train.
16. By a letter dated March 7, 2013 the inquiry report of January 7, 2013 was
forwarded to the delinquent. The relevant letter informed the delinquent that
such report was being furnished to him in terms of Rule 11(19) of the West
Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007
(hereinafter referred to as “the said Rules of 2007”) and as per a resolution of the
Administrative Committee of the High Court dated February 20, 2013. The letter
required the delinquent to forward his representation, if any, within 30 days of
the receipt of the report and called upon the delinquent to indicate “why the
Report shall not be accepted and you should not be suitably punished.” Such
show-cause notice resulted in a 94-page written representation being furnished
by the delinquent on April 6, 2013 in which the judicial officer questioned the
basis of the inquiry report upon detailed reference to such report, the
observations therein and the conclusions drawn by the inquiry officer on the
material gathered in course of the inquiry. Specific observations in the inquiry
report were quoted in the representation and dealt with by the delinquent in his
attempt to demonstrate that the conclusions ultimately drawn by the inquiry
officer were either not based on the material garnered during the inquiry or on
extraneous matters that had no nexus with the articles of charge brought against
the delinquent.
17. By a letter dated August 8, 2013 addressed by the High Court to the State
Government, which was also forwarded to the delinquent, the State Government
was informed that upon the High Court having considered the charge-sheet, the
inquiry report and the written representation submitted by the delinquent, the
High Court had been pleased to resolve as follows:
“Considering the impact of the activity of the delinquent
officer on the society and misconduct which is totally
unbecoming of a Judicial officer, resulting in disruption of
train services due to demonstration made by the railway
employees, thereby tarnishing the image of the judiciary in the
estimation of the members of public, in the facts and
circumstances of the case, it is consider (sic, considered)
appropriate to inflict upon him punishment of compulsory
retirement from Judicial Service.”
The State Government was advised to issue an appropriate Government Order in
terms of Rule 10(b)(iii) read with Rule 20(b) of the said Rules of 2007.
18. The deposed judicial officer preferred an appeal before the Governor
against the decision of the disciplinary authority communicated to him by the
letter of August 8, 2013. Such appeal was filed on or about September 4, 2013.
The appeal papers were apparently forwarded by the Governor to the High Court
in terms of Rule 16(3) of the said Rules of 2007. The opinion of the High Court
appears to have been received by the Governor on January 15, 2014 to the
following effect:
“The decision of compulsory retirement as inflicted by
the Hon’ble Court upon the delinquent officer is an outcome of
the majority rule countermeasuring with the quantum of guilt,
hence stands unaltered and irrecoverable (Sic, irrevocable?)
whatsoever (sic).”
The Governor’s order of January 22, 2014 indicated that the Governor agreed
with the opinion and the appeal petition of the delinquent was disallowed. The
Governor’s order was communicated to the delinquent by a letter of February 3,
2014.
19. The ousted judicial officer instituted a petition under Article 226 of the
Constitution of India before this court on or about April 21, 2014. It is the
rejection of such petition by the judgment and order of July 14, 2017 that has
been assailed in the present appeal. The appeal was assigned to the bench
presided over by the senior Judge on this bench on October 5, 2018, just before
the Puja Vacation. The matter was substantially heard by the middle of April,
2019 before the lawyers’ cease-work, which continued till the summer vacation,
intervened. The hearing was, thereafter, resumed and concluded on June 28,
2019.
20. The writ petitioner-appellant conducted his matter in person in the court of
the first instance; just as he does here, too. In the impugned judgment and order
of July 14, 2017, running into 20 pages, the incident of May 5, 2007 is described
over the first three pages before the two articles of charge are quoted till nearly
the end of the fifth page. The next two pages in the judgment impugned refer to
the notices being served on the appellant, his replies, the inquiry report and the
subsequent notice before quoting the entirety of the letter dated August 8, 2013.
The filing of the appeal and the dismissal thereof are recorded before quoting the
reliefs claimed in the petition under Article 226 of the Constitution. The next
three pages in the judgment impugned allude to the primary contentions in the
writ petition, the affidavit filed by the High Court in opposition to the petition and
the stand taken by the High Court in accordance with the said Rules of 2007.
About six pages in the judgment impugned have been expended on the legal
precedents cited by the appellant herein and the High Court administration. The
adjudication is reflected over three pages. The writ court observed that the
appellant’s actions complained of were “well beyond the scope of the Code of
Criminal Procedure, 1973”; that the “instance of detention/arrest ordered by the
petitioner is improper, both in form and in substance”; and, that the petitioner
was not acting judicially when the petitioner entered the motorman’s cabin to
enquire of the driver as to the reasons for the delayed running of the train. As to
the punishment of compulsory retirement, the court observed that since the
petitioner’s entry into the motorman’s cabin was unauthorised, “interrogating the
motorman in the name of a judicial enquiry and subsequently ordering his
detention/arrest, independently and collectively amount to offences which are
patently illegal in nature.” In the relevant paragraph dealing with the
reasonableness of the punishment inflicted on the petitioner, the court observed,
at least at two places, that the petitioner had travelled in the motorman’s cabin
on previous occasions. The punishment was held to be justified since the
“petitioner was engaged in several offensive acts and one among them was his
previous conduct of having regularly travelled in such unauthorised manner …”.
The court did not find the punishment of compulsory retirement to be arbitrary
or unreasonable, far less perverse.
21. Of the several relevant and irrelevant grounds canvassed by the appellant
in person, the one that stands out is that the appellant was never conveyed any
reasons why the disciplinary authority perceived that the charges levelled against
the appellant stood substantiated or the appellant’s contentions as to the inquiry
report were unfounded. The appellant appears to be equally bemused by the
abrupt order in the appeal without any reflection of his contentions having been
looked into or addressed.
22. It is elementary that in this jurisdiction under Article 226 of the
Constitution, the court scarcely sits in appeal over the impugned decision. The
writ court looks into the decision-making process rather than the decision: as
long as the decision is not utterly perverse such that no reasonable person in the
position of the decision-maker could have reasonably made such decision; or, in
the more modern assessment on the basis of proportionality in preference to the
Wednesbury rules of reasonableness, the ultimate decision is not grossly
disproportionate to the conduct complained against. It may do well to keep in
mind that in matters of the present kind, what the writ court looks into is
whether there was due notice to the writ petitioner, whether he was afforded a
fair hearing – where the hearing implies a consideration of the objections or
grounds raised by him – and a reasoned order was rendered on the matter. To
emphasise on the limited scope of judicial review available in this jurisdiction, it
is the authority of the decision-making body to make the decision which is
assessed in addition to ascertaining whether a reasonable procedure was
followed and the matter culminated in a cogent decision. It is on such tests that
the present appeal and the grievance of the writ petitioner need to be addressed.
23. The first aspect that has to be seen pertains to the scope of the proceedings
and, as a consequence, the scope of the inquiry conducted in course thereof and
the nexus of the ultimate decision with the scope of the departmental
proceedings. The parameters in such regard were outlined in the articles of
charges and the statement of imputation of conduct appended to the articles in
the High Court’s letter of December 3, 2007.
24. The first article contained two paragraphs. The first paragraph charged the
judicial officer with travelling in an unauthorised manner in the motorman’s
cabin on the relevant train on May 5, 2007. The second part of such first charge
complained of the judicial officer resorting to such unauthorised travel in similar
fashion in the past or on regular basis. The second paragraph of the first charge
was that either action complained of in the first paragraph amounted to improper
and illegal exercise of administrative power by the judicial officer and, if proved,
would amount to gross misconduct as a public servant and unbecoming of a
judicial officer. The second article of charge was covered three paragraphs. The
first paragraph charged the Railway Magistrate of exceeding his jurisdiction by
enquiring of the driver the reasons for the delayed running of the train in course
of the journey. The second paragraph also referred to the reports obtained by the
judicial officer from the motorman and the guard of the relevant train. Such
paragraph also referred to the driver and the guard being taken to the railway
police station and to the Railway Magistrate’s court pursuant to the verbal
direction of the Railway Magistrate. Both the obtaining of the reports and the
verbal directions were said to be unauthorised activities that resulted in a violent
demonstration by railway employees and the total disruption of train services for
a specified time in the Sealdah division. The third paragraph under the second
article of charge was on the same lines as the second paragraph under the first
article: that the acts complained of were improper and illegal exercise of
administrative power by Railway Magistrate, and, if proved, would amount to
gross misconduct as a public servant and unbecoming of a judicial officer.
25. It is fundamental that in departmental proceedings which are initiated by
the issuance of a show-cause notice or a charge-sheet, the ultimate order or the
order of punishment has to be in consonance with the show-cause notice or
charge-sheet. In other words, the scope of the entire proceedings is defined by
the show-cause notice or the charge-sheet. The same is true for decisions of any
State or other authority within the meaning Article 12 of the Constitution arising
out of a show-cause notice. When a process is triggered off by a show-cause
notice or a charge-sheet, the reasonableness of what follows, including the
quality of the opportunity afforded to the person proceeded against and the
propriety of the ultimate decision, are pegged to and rooted in the show-cause
notice. The proceedings can, ordinarily, not be expanded beyond what is
conceived of and outlined by the show-cause notice and any transgression,
almost invariably, would not pass the scrutiny under judicial review.
26. In the context of the charges levelled against the appellant in this case it
was possible, at the highest, for the appellant to have been found guilty on both
counts in respect of the matters referred to in the first article of charge and also
for the appellant to have been found to have acted in an unauthorised manner in
enquiring of the motorman as to the reasons for the delay in running of the train
and further in obtaining the reports from the driver and the guard of the relevant
train and requiring such railway personnel to be detained or produced in his
court. Even on the most charitable reading of the second article of charge, the
violent demonstration and the disruption of the train services could not be
directly attributed to the appellant even if the underlying suggestion in the article
was that the appellant’s actions had triggered off the violent demonstration or the
disruption of the train services.
27. As it transpires from the inquiry officer’s report, there was no doubt that
the appellant entered into the motorman’s cabin on the relevant train and
travelled therein from Lake Gardens to Sealdah. On the basis of the material
presented before the inquiry officer, such officer perceived the appellant’s entry
into the motorman’s cabin to be unauthorised and, to such extent, the first
article of charge was found to be established for action to be taken in such
regard. However, the inquiry report unambiguously found, as a matter of fact,
that there was no evidence of any previous instance of the appellant having
travelled in the motorman’s cabin. It was, thus, a single occasion of unauthorised
travel in the motorman’s cabin that could be said to have been established
against the appellant herein, if it was unauthorised at all. In the light of such
clear and categorical finding in the inquiry report that it was a solitary instance
of the appellant travelling in the motorman’s cabin, the judgment impugned is
clearly flawed in its reference to the appellant travelling in the motorman’s cabin
on previous occasions (“he had done the same on previous occasions”). As a
consequence, the consideration as to the propriety of the punishment by the
court of the first instance is tainted by extraneous or erroneous considerations,
particularly in the court referring to “his previous conduct of having regularly
travelled in such unauthorized manner …”.
28. Similarly, the writ court was clearly wrong in justifying the finding of guilt
against the appellant and the consequential order of punishment sandwiched in
the extremely short order of the disciplinary authority evident from the letter of
August 8, 2013 on the ground that the appellant had ordered the motorman’s
“detention/arrest”. The order of punishment did not spell out such reason; the
preliminary report expressly found there was no order of detention; and, there
was no finding as to any order of detention in the inquiry report.
29. The more alarming feature is that the court of the first instance may have
missed the wood for the trees in its narration of the sequence of events without
noticing that the detailed representation of the appellant against the inquiry
report had neither been alluded to by the disciplinary authority nor even
considered in imposing the punishment on the appellant. Equally, the court of
the first instance failed to notice that even the consideration of the appeal –
whether it was an appeal or a reconsideration in the nature of review – was just
as fallacious as being uninformed by reasons and no reasons being forwarded to
the person who suffered prejudice thereby.
30. Indeed, though the said Rules of 2007 have been referred to in the
impugned judgment and the pedantic reference to some its provisions in the
letters issued by the High Court has also been noticed, the scope of such rules or
the procedure envisaged thereunder did not engage the attention of the court of
the first instance. It is in the said Rules of 2007 that the key to the matter may
lie.
31. The said Rules of 2007, published on July 12, 2007, apply to members of
the West Bengal Judicial Service, including erstwhile members of the West
Bengal Civil Service (Judicial) and the West Bengal Higher Judicial Service. Rule
2(1)(c) of the said Rules of 2007 defines “Disciplinary authority” to mean “the
authority competent under these rules to impose penalty on a Judicial Officer.”
The appellate authority, under Rule 2(1)(a) of the said Rules of 2007 is shown to
be the Governor of the State. Rule 10 of the said Rules of 2007 deals with
penalties which are classified as minor and major penalties. The three last
categories of punishment, in the ascending order of harshness are compulsory
retirement, removal from service and dismissal from service. The distinction
between removal from service and dismissal from service, neither case being
relevant for the present purpose, is that in case of the former there would be no
disqualification from future employment, but in case of the latter, such
disqualification would operate. Rule 11 of the said Rules lays down the procedure
for imposing major penalties. The procedure envisaged in Rule 11 of the said
Rules of 2007 was followed in this case till the filing of the inquiry report and the
forwarding of such report by the disciplinary authority to the appellant and
calling upon the appellant to make a representation on the findings of the inquiry
report. However, Rule 11(19) of the said Rules of 2007 in its use of the
expression, “intimating the punishment proposed”, mandates that the nature of
the punishment that could be meted out to the delinquent is required to be
indicated. This was not done by the notice of March 7, 2013 which merely
demanded of the delinquent to furnish his representation “as to why the Report
shall not be accepted and you should not be suitably punished.” The said rules
were framed in 2007 and long after the Forty-second Amendment to the
Constitution of 1976 in respect of Article 311 of the Constitution, if such
provision is at all relevant for the present purpose.
32. Even if such discrepancy were to be disregarded in the light of the
delinquent having sufficient notice that it was a major punishment that could be
imposed on the delinquent for the perceived acts of delinquency, what cannot be
glossed over is the subsequent subjective satisfaction of the disciplinary
authority that the charges against the delinquent had been proved without any
reasons being furnished in support thereof or any objective consideration of the
representation of the delinquent being reflected in the decision. The records were
called for from the High Court administration in course of the present appeal and
there is nothing more evident from the records as to how the representation of
the appellant against the inquiry report was considered than what is evident from
the terse decision itself. Even if reasons were found to exist in the file it would
not have sufficed for such reasons would not have been worth the paper they
were printed on if they had not been furnished to the delinquent. Astonishingly,
it is discovered that no reasons actually exist.
33. It is a cardinal principle in a system governed by the rule of law that a
decision has to be founded on reasons that reflect the application of the mind to
the matters in issue; for, it is the reasons that are to be considered in assessing
the decision and the decision falls if the reasons in support thereof are found
lacking. In the present case there are no reasons at all for the decision to stand.
After all, it is the “why” of the reasons that props up the “what” of a decision; and
when no reasons are found, the decision hangs in thin air.
34. It is true that the decision in this case is the collective and unanimous
decision of the full complement of the then judges in this court – of persons who
are professional judges and tasked by the Constitution to judge. But the same
Constitution and the morality that it expresses through its provisions pertaining
to the equality and fairness, makes no exception for dispensing with reasons in
an administrative matter pronounced upon by judges appointed under the
Constitution. Where the authority in such regard is not mandated by the lex
suprema, constitutional functionaries cannot arrogate the power unto
themselves. On the contrary, constitutional authorities need to adhere more to
the constitutional requirements.
35. Article 235 of the Constitution gives every High Court the control over the
subordinate courts in the State or States governed by the relevant High Court. In
accordance with such provision, it is the High Court which is the disciplinary
authority in matters pertaining to judicial officers in the State and the High Court
in such a situation means the full complement of the judges in the High Court.
On the administrative side, the High Court, as the collective, functions either on
the basis of the decisions of a group of judges constituting the Administrative
Committee or in its full complement. Every decision on matters, which under the
Rules of this High Court on its Appellate Side, are delegated for the consideration
by the Administrative Committee, needs to be ratified by the Full Court. The
expression Full Court is a euphemism implying all the judges of the High Court.
Ordinarily, a Full Court meeting is where all the judges attend or a meeting
where all the judges are called upon to attend and a requisite quorum is
achieved. In matters pertaining to resolutions of the Administrative Committee,
usually, such resolutions would be circulated to all the judges in the High Court
and, if there is no objection, by virtue of the principles governing the passing of
resolutions in circular, such resolutions are deemed to have been carried and
become the decisions of the High Court. If there is even a solitary objection from
the junior-most judge, the matter has to go to a Full Court meeting where all
judges are called upon to attend. Decisions are carried as per the majority
opinion of the house at Full Court meetings, subject to the requisite quorum
being achieved.
36. The procedure of functioning on the basis of the recommendations of the
Administrative Committee has been devised as a matter of convenience. The
Administrative Committee is manned by senior judges as may be inducted by the
Chief Justice and everyday matters pertaining to the administration of the
District Judiciary go first to the Administrative Committee. In the usual course,
the decisions of the Administrative Committee are circulated, almost invariably
without the papers in support of the decision being circulated simultaneously. It
is, however, open to any judge to call for the papers relating to any resolution for
the judge to look into the same in course of deciding whether to accept or
disagree with the resolution of the matter as proposed by the Administrative
Committee. Experience shows that such resolutions by circulation, when they
deal with routine matters – disciplinary proceedings have now become regular
and, as such, routine – other judges tend to go by the wisdom of the
Administrative Committee, considering the seniority and experience of the
persons constituting such committee; and only the odd decision of the committee
is objected to for the matter to go to a Full Court meeting. In a sense, most
decisions passed by circulation are the majority decisions of the Administrative
Committee that are, more often than not, passively endorsed by the remaining
judges of the High Court.
37. The procedure would also have sufficed in this case if the decision of the
disciplinary authority (that is, of the full complement of the judges of the High
Court), had been founded on the reasons indicated in any decision of the
Administrative Committee. The overall decision of the remaining judges then
would have endorsed the reasons furnished by the Administrative Committee and
such reasons would have been the reasons of the entire collective. But reasons
cannot be substituted by the ipse dixit of the decision-making body, however
mighty and wise the decision-making body may be and even it is the full
complement of judges in a High Court. Rule 11(20) of the said Rules of 2007 in
its opening limb contains the words, “Upon consideration of the representation”.
Any consideration of a representation would imply the assessment of the grounds
urged in the representation and the rejection thereof on cogent basis if a
punishment were to be imposed on a perceived delinquent despite his
representation to the contrary. Further, the consideration must also reflect why
one form of punishment was preferred to the other; at least why a harsher form
of punishment was found to be more suitable in the circumstances than the less
harsh forms. Rule 10(b) of the said Rules of 2007 lays down five forms of
punishment: compulsory retirement being the third of the five. Even if the
procedure under Rule 11 pertaining to major penalties were to be followed, the
consideration of the representation of a perceived delinquent by the disciplinary
authority ought to reflect, apart from the finding of guilt against the delinquent,
why a particular mode of punishment was found suitable than the others.
38. The order of punishment in this case is singularly lacking on both counts:
it does not indicate how the guilt of the appellant herein was established and how
the punishment of compulsory retirement was called for in the circumstances.
39. The appellant was dissatisfied with the order of the disciplinary authority,
including the order of punishment handed down to him. The appellant carried an
appeal from the relevant order. As it turns out, the appeal under the said Rules
of 2007 is not even from Caesar to Caesar’s wife; it is from Caesar and back to
Caesar himself. The said Rules of 2007, in its appellate provision, begs the
question as to why the Governor is made the authority for a purely decorative
purpose.
40. The appellate provision in Rule 19 of the said Rules of 2007 permits a
judicial officer aggrieved by any order made by the disciplinary authority to prefer
an appeal to the Governor. Rule 16(3) of the said Rules of 2007 obliges the
Governor to forward the memorandum of appeal to the High Court and the
resulting opinion of the High Court is binding on the Governor. The relevant subrule
provides thus:
“16. Appeal. – 1. …
2. …
3. The Governor on receipt of the memorandum of
appeal from the aggrieved Judicial Officer, shall forward
the same to the High Court for its opinion and on receipt
of the opinion from the High Court, the Governor shall
decide the appeal in accordance with the opinion duly
forwarded by the High Court.
…”
41. To begin with, there is an anomaly in Rule 16 and the dissimilar treatment
of appeals from major penalties and appeals from minor penalties as evident
therefrom. Even though on a reading of the entirety of Rule 16, the intention
therein appears to be that the Governor would be the appellate authority only in
respect of orders imposing major penalties, the wording of Rule 16(1) appears to
be somewhat wanting in such regard, particularly in its use of the expression
“any order” and the subsequent use of the words “including”. Be that as it may.
42. Returning to Rule 16(3) of the said Rules of 2007, the appellate provision
really amounts to a provision for review or reconsideration. This may be in
keeping with a judgment of the Supreme Court that is noticed later, but it defies
logic to have an appeal provision that is really one for review. The provision could
have been more forthright and fashioned as a review. The considerations, as
every judge should know, are entirely different in an appeal than in a review. If
the reconsideration of the decision as an appeal has to be undertaken by the
High Court under the appeal provision, it cannot be regarded as a review.
43. There is no doubt that under the scheme of Article 235 of the Constitution
it is the High Court, and the High Court alone, that exercises administrative
control over the subordinate courts in the District Judiciary and the judicial
officers manning the same. Equally, it is axiomatic that the opinion or the
decision of the High Court in matters pertaining to the administration of justice,
including decisions on judicial officers in the District Judiciary, is binding on the
State Government. Thus, when the High Court recommends the promotion of a
judicial officer or the dismissal from service or other punishment regarding any
judicial officer, the executive branch of the Government has no say in the matter
and the Governor as the titular appointing authority has to abide by such
decision or advice of the High Court. But it is one thing to say that the Governor
is bound by the decision of the High Court and quite another for the Governor to
exercise due authority if the Governor is the named appellate authority in the
rules. The functioning of the Governor as the appointing authority may be quite
distinct from the functioning of the Governor as the appellate authority. If any
rules confer authority on the Governor as the appellate authority over a decision
of the High Court, the decision of the Governor in his capacity as appellate
authority may not be in conflict with his limited authority available in view of
Article 235 of the Constitution. However, Rule 16(3) of the said Rules of 2007
does not confer any independent authority that is usually vested in a named
appellate authority but merely makes the Governor’s office a route for the
passage of the appeal through such office to the High Court and the
communication of the High Court’s opinion upon reconsideration to the appellant
through such office. But that cannot detract from the quality of the reassessment
which must be seen to be in excess of what is permissible under a review since
the authority is expressed in the rules as appellate authority.
44. In the High Court, as the disciplinary authority in this case, having failed
to furnish any reasons in support of its decision in the order of punishment and,
again, in the High Court not indicating any or any further reasons while
reconsidering the matter upon the appeal being forwarded by the Governor, the
order of punishment cannot be sustained. Indeed, it is not even evident from the
records produced by the High Court whether the decision in the appeal is a
decision of the collective or the full complement of the judges of this court.
45. The necessary corollary to this is whether, after 12 years of the incident,
the matter must now be remanded to the disciplinary authority for it to consider
it afresh. In between, the appellant had suffered an order of suspension which
was revoked as a reason of the delay in the completion of the proceedings; but
the appellant has suffered severance following the decision of the disciplinary
authority which has remained undisturbed till date.
46. It is here that the judgments cited by the parties and by Learned
Advocate-General, who was requested to assist the court in this matter, need to
be noticed and understood so that they may be a guide to the ultimate decision
that is taken here. The submissions of the parties are reflected in the reports and
have been appropriately recorded in the judgment under appeal and there is no
need for any repetition.
47. Apart from the several provisions of the Criminal Procedure Code and the
Railways Act that the appellant has placed to demonstrate that the appellant, as
a Magistrate, had due authority to conduct an inquiry and take appropriate steps
for the larger good, the appellant has referred to a judgment reported at (1981) 2
SCC 577 (Rachapudi Subba Rao v. The Advocate-General, AP) to suggest that a
judicial officer, acting in discharge of his official duty in good faith and believing
to be possessed with the requisite authority, is protected under Section 1 of the
Judicial Officers’ Protection Act, 1850 and cannot be hauled up on such ground.
48. The appellant also places a judgment reported at (2012) 5 SCC 242 (Vijay
Singh v. State of UP). In that case, a ground urged by the delinquent was not
considered by the revisional authority. Such non-consideration prompted the
Supreme court to observe as follows at paragraph 17 of the report:
“17. … Undoubtedly, the statutory authorities are under the
legal obligation to decide the appeal and revision dealing with
the grounds taken in the appeal/revision etc., otherwise it
would be a case of non-application of mind.”
The appellant submits that both the disciplinary authority and the appellate
authority do not appear to have dealt with the grounds urged by the appellant in
his defence and such decisions would amount to non-application of mind.
49. A further judgment, reported at (2010) 11 SCC 278 (Indu Bhushan Dwivedi
v. State of Jharkhand), is cited by the appellant to emphasise on the scope of the
consideration by the disciplinary authority being confined to the charges brought
against the delinquent. In that case certain charges were levelled against the
delinquent judicial officer. The inquiry report indicated some of the charges to
have been proved. The High Court accepted the inquiry report and a show-cause
notice was issued to the delinquent for imposition of a major penalty. After
considering the delinquent’s reply, the High Court recommended his dismissal
from service. The concerned judicial officer challenged the order by contending
that the same was vitiated due to violation of the principles of natural justice
since the High Court, while recommending his dismissal, had considered uncommunicated
adverse remarks recorded in some annual confidential reports
without informing the delinquent that such material was being relied upon. While
dealing with the issue as to whether the consideration of the past adverse records
of the judicial officer had the effect of vitiating the order, the Supreme Court
found that the exact question was considered and answered in the affirmative by
a Constitution Bench in the judgment reported at AIR 1964 SC 506 (State of
Mysore v. K. Manche Gowda). The court then went on to hold as follows, at
paragraph 23 of the report:
“23. When it comes to taking of disciplinary action against a
delinquent employee, the employer is not only required to
make the employee aware of the specific imputations of
misconduct but also disclose the material sought to be used
against him and give him a reasonable opportunity of
explaining his position or defending himself. If the employer
uses some material adverse to the employee about which the
latter is not given notice, the final decision gets vitiated on the
ground of the violation of the rule of audi alteram partem. …”
50. The High Court refers to a judgment reported at (1995) 6 SCC 749 (B. C.
Chaturvedi v. Union of India) and places paragraphs 12 and 13 from the report to
emphasise on the limited scope of judicial review available in this jurisdiction.
The judgment instructs that when the disciplinary authority accepts the evidence
gathered by the inquiry officer and concludes that the guilt of the delinquent
receives support therefrom, the court in its power of judicial review will not act as
an appellate authority to re-appreciate the evidence or arrive at its own
independent findings on the evidence. The room for interference would be where
the authority held the proceedings against the delinquent in a manner
inconsistent with any rule of natural justice or in violation of the statutory rules
prescribing the mode of inquiry or where the conclusion or findings reached by
the disciplinary authority are based on no evidence.
51. Another judgment, reported at (2007) 4 SCC 627 (UP SRTC v. Ram Kishan
Arora), has been carried by the High Court to demonstrate that it is not the
decision but the decision-making process that is scrutinised in this jurisdiction
under Article 226 of the Constitution. This was a case of the High Court reducing
the punishment without assigning any reasons and the Supreme Court observed
that the High Court could not have substituted its opinion for that of the
disciplinary authority.
52. The High Court submits that when there is a grave charge as in the
present case which is brought against a delinquent officer, even the nonfurnishing
of the inquiry report to the delinquent officer is glossed over unless it
is perceived to have resulted in grievous prejudice or serious miscarriage of
justice. For such purpose, the judgment reported at (2001) 6 SCC 392 (State of
UP v. Harendra Arora) has been placed. Another judgment, reported at (1993) 4
SCC 727 (Managing Director, ECIL, Hyderabad v. B. Karunakar), has been cited
by the High Court for the proposition that if a key function has been missed out
by the disciplinary authority or if there is a grave error at any stage, the court
may remand the matter to the disciplinary authority to rectify the mistake and
complete the proceedings from such stage.
53. Learned Advocate-General, who has assisted the court upon invitation, has
confined his submission to the broad parameters that govern the assessment of a
challenge to an order of punishment in disciplinary proceedings in the
jurisdiction exercised under Article 226 of the Constitution. The veritable
textbook in this jurisdiction has been relied upon by referring to the celebrated
judgment reported at AIR 1956 Cal 662 (A.R.S. Choudhury v. The Union of India).
Several paragraphs from the report have been placed to demonstrate what the
procedure ought to be and what would amount to reasonableness or adherence
to the rules of natural justice by referring to the four main stages of charge,
investigation of the charge, finding and punishment. The judgment explains the
activity that is undertaken at each stage and, except for a minor part which has
been rendered inconsistent upon the Forty-second Amendment to the
Constitution being effected, how the matter ought to progress through the
various stages as recognised in the judgment still remains the ultimate guide.
54. As to the provision of appeal in the said Rules of 2007, learned Advocate-
General has referred to a judgment reported at (1996) 5 SCC 90 (T. Lakshmi
Narasimha Chari v. High Court of Andhra Pradesh) where the provision in the
corresponding rules of Andhra Pradesh provided for an appeal to the Governor
without such provision expressly specifying the scope of the authority of the
Governor in course of such appeal. The relevant provision was interpreted by the
Supreme Court to imply “that the appeal to the Governor against the order of the
High Court provides for reconsideration of the High Court’s order by the
Governor, but in keeping with the requirement of Article 235 that the power of
control over persons belonging to the judicial service of a State vests in the High
Court, and that the appeal must be decided by the Governor only in accordance
with the opinion of the High Court.” It appears that Rule 16(3) of the said Rules
of 2007 applicable to judicial officers in this State is inspired by such judgment
of the Supreme Court and expressly provides for the Governor to forward the
appeal to the High Court and be guided by the opinion of the High Court thereon.
55. Learned Advocate-General has also referred to judgments of the Supreme
Court that instruct that the High Court on its judicial side must exercise extreme
care and caution before upsetting a collective decision of the judges of the same
High Court on the administrative side. For such purpose, a judgment reported at
(1999) 4 SCC 579 (High Court of Punjab and Haryana v. Ishwar Chand Jain) has
been first placed. That case pertained to a judicial officer being compulsorily
retired on the basis of his performance record. The Supreme Court observed that
“where the Full Court of the High Court recommends compulsory retirement of
an officer, the High Court on the judicial side has to exercise great
circumspection in setting aside the order”. However, the court also went on to
add that in a case of perceived doubtful integrity of a judicial officer, evidence
may not be forthcoming “and at times the Full Court has to act on the collective
wisdom of all the Judges.”
56. In similar vein, in the judgment reported at (2003) 9 SCC 592 (Syed T.A.
Naqshbandi v. State of Jammu and Kashmir), the Supreme Court held that
“Neither the High Court nor this Court … could or would at any rate substitute
themselves in the place of the Committee/Full Court of the High Court
concerned, to make an independent reassessment of the same, as if sitting on an
appeal”. Again, that was a case of a promotion or a higher grade being awarded
to a judicial officer which was under challenge. In another case, reported at
(2012) 6 SCC 357 (Registrar General, High Court of Patna v. Pandey Gajendra
Prasad), the Supreme Court observed that for a decision of the Full Court to be
reversed by the High Court on the judicial side, the decision has to be “so
arbitrary, capricious or so irrational so as to shock the conscience of the Division
Bench to justify its interference.” That was a case of removal from service of a
Railway Judicial Magistrate upon finding gross misconduct on his part in certain
judicial orders.
57. Learned Advocate-General has also referred to a judgment reported at
(2011) 10 SCC 1 [Rajendra Singh Verma v. Lieutenant Governor (NCT of Delhi)]
wherein similar observations were made by the Supreme Court in a matter where
several judicial officers who had been compulsory retired on the basis of their
performance records had challenged the relevant order. In a further judgment,
reported at (2000) 1 SCC 416 (High Court of Judicature at Bombay v. Shashikant
S. Patil), where the compulsory retirement of a judicial officer was challenged, the
Supreme Court frowned on the Division Bench of the Bombay High Court
interfering with the decision of a committee of five judges as endorsed by the Full
Court. The matter pertained to an innocent litigant being wrongfully arrested,
handcuffed and paraded in public. The inquiry report exonerated the judicial
officer of the charges. However, the disciplinary committee of the Bombay High
Court (consisting of five judges of that court) disagreed with the inquiry report
and caused a notice to be issued to the judicial officer calling upon him to show
cause why the findings of the inquiry officer should not be repudiated and a
major penalty of dismissal from service imposed on him. Upon the decision of the
disciplinary committee to compulsorily retire the judicial officer being challenged,
a Division Bench of the Bombay High Court set aside the same on the ground
that “when the disciplinary authority differs from the findings of the enquiry
officer, it has to discuss the entire case threadbare and establish that each
finding of the enquiry officer was totally improbable …”. The Supreme Court
disagreed. It held that the findings of an inquiry officer are not binding on the
disciplinary authority and the disciplinary authority could disagree with such
findings, hold that the charges framed were prima facie proved and issue a notice
to the delinquent in that regard for the matter to be considered on the
delinquent’s response.
58. Learned Advocate-General has placed a judgment reported at (1988) 3 SCC
211 (Registrar, High Court of Madras v. R. Rajiah) to indicate the circumstances
when interference is warranted in service law in course of judicial review.
Paragraphs 21 and 22 of the report have been placed where the Supreme Court
held that the adequacy or sufficiency of the material on which a decision is
founded cannot be questioned in judicial review, unless the material is absolutely
irrelevant. However, the court went on to add as follows at paragraph 22 of the
report:
“22. … If there be no material to justify the conclusion, in that
case, it will be an arbitrary exercise of power by the High
Court. Indeed, Article 235 of the Constitution does not
contemplate the exercise by the High Court of the power of
control over subordinate courts arbitrarily, but on the basis of
some materials. As there is absence of any material to justify
the impugned orders of compulsory retirement, those must be
held to be illegal and invalid.”
59. What must be kept in mind is that the disciplinary proceedings initiated
against the appellant herein pertained to a particular incident. The charges
against the appellant did not involve any matter of moral turpitude or even the
performance of the appellant as a judicial officer. In most of the cases referred to
above, when charges of moral turpitude or poor performance of a judicial officer
have been levelled, the Supreme Court has observed that the collective wisdom of
the High Court should not be tinkered with since judges would be aware of such
aspects of the concerned judicial officer and overwhelming material in such
regard may be difficult to obtain. In the same breath, however, the Supreme
Court has instructed that when a decision is based on no material at all or no
reasons are furnished, it can be said to be arbitrary or capricious.
60. It is here that the considerations that weighed with the High Court as the
disciplinary authority in finding the appellant guilty and inflicting the
punishment of compulsory retirement must be scrutinised. For such purpose,
the only material available is what is contained in the letter dated August 8,
2013. It is such finding that has to be linked to the charges brought against the
appellant, if the decision embodied in the letter of August 8, 2013 has to stand.
61. There is no doubt that the appellant entered the motorman’s cabin on the
relevant date for a purpose. That is evident from the several statements of the
appellant. He apparently intended to redress what he perceived was wrong.
Whether it was the youthful exuberance of a fledgling judicial officer or the
innocence of his age that prompted him to imagine that he could rid the system
of the malaise, the appellant appears to have thought that it was within the
bounds of his judicial authority as a Railway Magistrate to address the issue.
This defence was not taken by the appellant as an after-thought to camouflage
the arrogance of authority that he was seen to have flaunted, but is
substantiated by the initiation of two sets of proceedings almost immediately
upon the appellant reaching Sealdah Station on the relevant day. Even if what
the appellant set about to do may be regarded as completely flawed, it must be
seen that his action may not have been guided by any personal motive. In his
book, the appellant was trying to correct the malady that regularly brought grief
to the public, particularly the persons availing of the relevant train at a busy time
of the day. The appellant did not stand to gain anything if, as a result of his
action, the regular delay in the running of the relevant train was corrected.
62. In course of the inquiry and in his response to the notice issued by the
disciplinary authority, the appellant referred to several provisions, including from
the Criminal Procedure Code, that the appellant perceived gave the appellant due
authority to address the issue. At the highest, the appellant may have been
wrong in his perception and may have erroneously assumed jurisdiction in
respect of a matter that did not fall within his judicial domain. But the incident
had nothing to do with the sense of morality or integrity of the appellant nor
could he have been seen to have embarked on the exercise for personal
aggrandisement or like motive. There was no evidence or finding that he had ever
entered the motorman’s cabin on any other occasion. He did not force his entry
into the cabin. He thought he had due authority to call for reports from the
motorman and the guard as to the regular delay in the running of the relevant
train and it appears that he directed the railway police to ensure the presence of
the motorman and the guard in his court so that the appropriate reports could be
filed by them.
63. It may have been wrong on the appellant’s part to try to use his judicial
office to right what he perceived was a public wrong. Indeed, most Indians look
the other way even when a crime is committed in their presence or a grievous
wrong is done, lest they be dragged into any avoidable court proceedings. This
judicial officer foolishly thought that he could single-handedly take on the
smuggler mafia.
64. As regards the second charge, the first part pertained to the appellant
asking the driver of the train about the reasons for the late running of the train
the thereby exceeding his jurisdiction. The second part of the charge was that he
obtained reports on the late running of the train from the driver and the guard
and that the driver and the guard were taken to the railway police station and to
the Railway Magistrate’s court pursuant to the appellant’s illegal verbal order. All
the three acts of the appellant complained against in the two articles of charge,
and which stood proved in the opinion of the inquiry officer and are deemed to
have been endorsed by the disciplinary authority, pertained to the same matter of
the appellant seeking to redress a perceived wrong for public good. That there
was a violent demonstration at the Sealdah station or that the train services were
disrupted for some time on the relevant day in the Sealdah division, were not the
handiwork of the appellant; nor could the appellant have reasonably
apprehended the same. If the appellant had acted illegally or in an unauthorised
manner, the appellant’s initiation of the relevant proceedings could have been
challenged in accordance with law. But once it was evident that the appellant
had assumed authority in his judicial capacity – however erroneous he may have
been – the punishment of compulsory retirement appears to be grossly
disproportionate and shocking. Indeed, as would be evident from the disciplinary
authority’s order communicated to the appellant on August 8, 2013, it is the
disruption of train services which seems to have weighed with the disciplinary
authority. For good measure, the disciplinary authority’s order also referred to
the conduct of the appellant “tarnishing the image of the judiciary in the
estimation of the member of public”. This was not something that the judicial
officer had been charged with.
65. The decision of the High Court upon reconsidering the matter is equally
confusing, particularly in its reference to “outcome of the majority rule
countermeasuring with the quantum of guilt”. From the records of the High
Court as produced in course of this appeal, it does not even appear that the
opinion of the High Court communicated to the Governor was circulated to or
had the approval of the judges of the High Court. Most importantly, on neither
occasion did the High Court indicate the slightest of reasons or any application of
mind as to why it endorsed the findings of the inquiry officer or rejected the
contentions of the appellant or even why such a harsh of punishment was called
for in the circumstances. After all, it was also the finding of the inquiry officer
that there was no evidence of the appellant having entered the motorman’s cabin
on any other occasion.
66. The disciplinary authority erred in not communicating the proposed
punishment to the appellant in accordance with the said Rules of 2007. The
disciplinary committee appears not to have applied its mind at all to the detailed
representation of the appellant against the inquiry report where the appellant
quoted from the inquiry report to indicate how some of the findings were not
based on the material gathered in course of the inquiry or were based on
erroneous or extraneous material. Further, the terse order of punishment of the
disciplinary authority did not dwell on any of the four acts contained in the two
articles of charge that were found to have been established in course of the
inquiry. The four acts found to have been established in course of the inquiry
were: the unauthorised entry of the appellant in the motorman’s cabin; the
unauthorised questioning of the driver regarding the late running of the train;
the unauthorised obtaining of the reports from the motorman and guard of the
relevant train; and, the unauthorised direction to the railway police to produce
the motorman and the guard before the Railway Magistrate’s court and the
taking of the motorman and the guard to the railway police station following the
appellant’s direction. The violent demonstration at the Sealdah station and the
disruption of train services in the Sealdah division were indicated in the chargesheet
or show-cause notice to be consequences of the appellant’s conduct and
were not cited as the grounds of misconduct by the appellant.
67. In the cryptic order of punishment passed by the disciplinary authority,
there was no reference to any of the perceived unauthorised action of the
appellant as found to have been established in the inquiry report. There was only
a reference to the violent demonstration and a further reference to the disruption
of the train services with the additional reference to the image of the judiciary
being tarnished in the estimation of the members of public. This additional part
did not form a part of the charges levelled against the appellant, nor was the
appellant called upon or given any opportunity to address such matter.
Tarnishing the image of the judiciary is a serious charge and the disciplinary
authority could not have jumped to the conclusion or founded its decision on
such ground when no charge on such count was presented against the appellant.
68. Indeed, the handling of the matter by the High Court may have left the
appellant both bemused and betrayed. A possible union leader, P. K. Singh, led a
group of indisciplined railway employees to chant slogans against the Railway
Magistrate for the Railway Magistrate’s grievous fault of trying to correct what he
perceived was a wrong to the public. The disruption of train services appears to
have been after P. K. Singh was detained. P. K. Singh had been detained for his
unruly behaviour in the Railway Magistrate’s court for which separate
proceedings were instituted and neither charge brought against the appellant
referred to such matter. Rather than the judicial officer being protected by the
High Court against the act of insult and intimidation faced by him in the Railway
Magistrate’s court by unruly railway employees, it was the Railway Magistrate
who was pushed to the dock to suffer for wanting to remedy a public wrong. At
any rate, the appellant may have acted in error or in excess of the authority that
he perceived to possess but even the preliminary report said that it did not find
that the appellant acted in bad faith or with any malicious intention. The
preliminary report expressly said so. The inquiry report endorsed the preliminary
report. Even the disciplinary authority did not expressly find the appellant to
have acted in bad faith or with any malice.
69. In the light of the above, the order of the disciplinary committee finding the
appellant guilty of the charges brought against him cannot be sustained. As a
consequence, the punishment inflicted on the appellant, which is otherwise
found to be disproportionate and shocking even if the guilt was established, is set
aside. The decision of the appellate authority is quashed. The judgment and
order impugned dated July 14, 2017 is set aside and the writ petition is allowed
to such extent.
70. The appellant is to be reinstated in service immediately and the appellant
should be considered to have been in continuous service without any break. The
appellant will be entitled to all benefits and promotion as if no disciplinary
proceedings had been initiated against the appellant, save the full complement of
his salary. The appellant will be paid 75 per cent of the salary that he would have
earned had he remained in service, since it does not appear that the appellant
had taken up any alternative work in the interregnum. Though the appellant did
not render any service, his punishment was unjustified and, at any rate, grossly
disproportionate to the conduct complained of. The appellant appears to have
used some of the time to obtain a Master’s degree.
71. The court appreciates the erudite and impartial assistance rendered by
learned Advocate-General in the matter.
72. FMA 26 of 2019 is allowed as above with costs assessed at Rs.1 lakh to be
paid by the High Court to the appellant.
73. Certified website copies of this judgment, if applied for, be urgently made
available to the parties upon compliance with the requisite formalities.
(Sanjib Banerjee, J.)
I agree.
(Suvra Ghosh, J.)
Later:
A stay of the operation of the order is prayed for by the High Court, which
is considered and declined.
(Sanjib Banerjee, J.)
I agree.
(Suvra Ghosh, J.)
No comments:
Post a Comment