- (1.)The petitioner was a judicial officer serving as a Joint District Judge in the cadre of District Judge. He was subjected to two departmental inquiries one after another for various charges of misconducts in discharging his duty as Judicial Officer. Ultimately, respondent No.2 Disciplinary Authority rendered a common decision dated 24th March, 2009 in respect of both the inquiries and imposed penalty of dismissal under Rule 6(8) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 (hereinafter referred to as the said Rules ). The respondent No.1 thereupon issued Notification dated 04th May, 2009 dismissing the petitioner from service.
1.1 In the present petition filed under Article 226 of the Constitution, the petitioner has prayed to set aside the said Notification dated 04th May, 2009 issued by the respondent No.1, as also the final decision dated 11th November, 2008/24th March, 2009 of respondent No.2. It is further prayed to reinstate him in service with full backwages and continuity of service with all consequential benefits by regularizing the period of suspension and to treat the said period of suspension as on duty.

Factual Matrix:

(2.)The basic facts as well as relevant dates and events may be outlined. The petitioner joined the services on 06th May, 1993 in the cadre of District Judge at the age of 43 years as direct recruitee from the Bar. He was initially appointed as Joint District Judge and served on the said post at Surendranagar, Palanpur, Bhavnagar and Rajkot. After the Report of Shetty Commission, his designation was changed as Additional District Judge.
2.1 While he was serving at Bhavnagar, first Departmental Inquiry No.12 of 2001 was instituted on 12th December, 2001, in which the Inquiry Officer submitted his report on 09th January, 2004. After issuance of charge-sheet on 12th December, 2001, the petitioner came to be suspended by order dated 20th March, 2002, while he was serving as Joint District Judge, Rajkot. In that inquiry, three-fold charges were leveled. The first charge was that the petitioner did not deliver the judgments for considerable long time after hearing of arguments. The second charge was that the petitioner granted bail in 13 cases of serious offences without considering the settled principles and guidelines laid down by the Hon'ble Apex Court as well as by this High Court in the matter of granting of bail to accused. Another limb of second charge viewed as a third charge, was that the petitioner in granting bail, unduly favoured two advocates, named Mrs.Hetaben H. Shah and Mr.M.M. Bhatt.

2.2 The Departmental Inquiry No.12 of 2001 was conducted by the Inquiry Officer of the cadre of Additional Principal Judge, City Civil Court, Ahmedabad. Seven witnesses, whose names are mentioned in paragraph 3.4 of the memo of the petition, were examined. Several documents were produced. The petitioner examined himself and other witness one Shri Chudasama. Statement of defence dated 13.03.2002 and another statement of defence dated 20.11.2003 were submitted by the petitioner during the course of the inquiry.

2.3 After the Inquiry Officer submitted his report on 09th January, 2004 holding that the charge No.1 was not proved, but the other charges were proved, respondent No.1 took tentative decision on 29th October, 2004 to impose penalty of dismissal. The same was served upon the petitioner along with a show cause notice dated 15th April, 2005 and the petitioner received the same on 19th April, 2005.

2.4 At this juncture, pending completion of the first inquiry, second Departmental Inquiry came to be instituted against the petitioner on 23rd February, 2005 in connection with the alleged irregularities committed by the petitioner during the same period while he was serving as a Joint District Judge, Bhavnagar. In that inquiry, statement of charges contained as many as 17 imputations.

2.5 The petitioner filed his reply on 26th July, 2009. In the said second Departmental Inquiry No.01 of 2004, learned Judge of respondent No.2-High Court of Gujarat was appointed as an Inquiry Officer, who gave his detailed Report exonerating the delinquent petitioner from the charges except Charge No.4, 10 and 13. These three charges were held to be partly proved in the inquiry report.

2.6 As per the case of the petitioner stated in the memorandum of petition, after receipt of the said Inquiry Report submitted on 11th January, 2007 by the Inquiry Officer, the respondents did not initiate any action for long. It was only on 25th April, 2008 a tentative decision was taken by the respondent No.2 and the same was sent to the petitioner on 07th May, 2008, as stated by the petitioner. It was sent along with a show cause notice in which the respondent No.2 Disciplinary Authority disagreed with the findings of the Inquiry Officer. The petitioner was called upon to show cause as to why he should not be dismissed from service. According to the Disciplinary Authority s tentative decision out of 16 charges, 10 charges were proved against the petitioner and therefore, it was stated that major penalty under Rule 6 of the said Rules was required to be imposed on the petitioner. The said show cause notice was replied by the petitioner on 24th June, 2008 with detailed submissions in defence.

2.7 The respondent No.2 took final decision in response to both the above Inquiries by a common decision dated 24th March, 2009 and ordered penalty of dismissal of the petitioner from service. On the basis of the said decision, the respondent No.1 issued Notification dated 04th May, 2009, which was communicated to the petitioner vide letter dated 05th May, 2009. During pendency of the present petition, the petitioner attained the age of superannuation on 28th February, 2010.

(3.)The petitioner appeared in person and made submissions. Learned senior advocate Mr.Shalin Mehta assisted by learned advocate Mr.Hemang Shah appeared for respondent No.2 and learned Assistant Government Pleader Mr.Utkarsh Sharma represented the respondent No.1. Heard the petitioner party-in-person as well as learned counsels for the respondents at length.
Charges in First Inquiry

3.1 Proceeding to consider the charges levelled against the petitioner in Departmental Inquiry No. 12 of 2001, the charge No.1 was not proved, hence need not be discussed here. The second charge, which related to granting of bail in different cases, was that the delinquent had ignored the settled principles and guidelines in granting bail by the Court to the accused and the bails were granted in undeserving cases. It was inter alia stated that in the matter of serious crimes, in order to ensure that the accused is available for trial and the course of trial is not obstructed by tampering with or destroying the evidence at the instance of the accused, releasing accused person on bail in all cases cannot be justified. The charge referred to different judicial decisions and set out circumstances which should govern the orders of granting bail. In such context, it was alleged against the petitioner that the manner and mode in which he granted bail in different matters with a view to favour two advocates showed that the bail orders were passed for consideration other than judicial and thereby (a) he was guilty of indulging in corrupt practice; (b) he was guilty of dereliction in discharging his judicial duty; and (c) he acted in a manner unbecoming of a judicial officer. A list of cases from Serial No.1 to 13 was produced. It was also alleged that the delinquent officer extended favour to two advocates in passing the bail order/s.

3.2 The above charge was sought to be refuted by the petitioner in his statement of defence dated 13.03.2002 on various grounds, which were repeated by him in his reply to the disagreeing finding recorded by the Disciplinary Authority. The petitioner party-in-person by referring to the submissions in the said reply, contended that in such type of charge, which was allegedly granting orders of bail wrongly, in order to judge on the charge, one has to scrutinize the merits of the judicial order in each case. He submitted that such an exercise in the Departmental Inquiry was not permissible, as the function of the domestic tribunal is administrative, and the inquiry officer did not perform the function of appellate court on judicial side. The party-in-person raised a preliminary objection to the very nature of the imputations, and pointed out that it was inter alia stated that the legislation in its wisdom has given some precise directions for granting or not granting bail . The statement of imputation further stated that in certain type of cases it would be rather unwise and it would be improper to release . The party-in-person therefore submitted that the charge as framed lacked in the very fundamentals inasmuch as there is no legislation which has given any direction regarding granting or non-granting of bail, and that whether granting of bail in a given case is proper or unwise is in the realm of judicial discretion and such imputations cannot be the basis for alleging misconduct unless the extraneous considerations are shown, which is not the case.

Submissions of parties in respect of charge in First Inquiry

3.3 The petitioner party-in-person took the court through his statement of defence and submitted on the basis of contents thereof that where there is unreasonable delay in completion of trial occurs, the accused would become entitled to bail as his liberty would stand violated by prolonged custody pending the trial. It was submitted that as case of default bail under sec.167(2) of Cr.P.C., other considerations would not apply. References was made to the decisions of the Supreme Court in R.B. Upadhyay V/s. State of Andhra Pradesh, 1996 3 SCC 422), Abdul Rehman Antule V/s. R.S. Naik, 1992 AIR(SC) 1701), Bipin Shantilal Panchal V/s. State of Gujarat, 2002 1 GLR 355), Hussainara Khatoon V/s. State of Bihar, 1979 AIR(SC) 1360 , Kadra Pehadia V/s. State of Bihar, 1981 AIR(SC) 939 , Shaheen Welfare Association V/s. Union of India, 1996 AIR(SC) 2957 . The party-in-person submitted that even in cases under the NDPS Act, 1985, right to speedy trial for the accused has been emphasized. On the basis of the above, the party-in-person contended that the different orders passed by him granting bail alleged as the acts of misconducts, were not misconducts, but they were an exercise of judicial discretion as per his best judgment. He submitted that even if other view is possible with regard to the discretion exercised by him for granting the bail, the order could not have been subject matter of departmental action, particularly when there is nothing to show that there was any extraneous consideration or the orders were motivated obliquely. It was submitted that the selection of 11 cases were a pick and choose exercise and thereby it was attempted to show that two particular advocates were favoured.

3.4 With regard to the allegation about extending favours to particular advocates, he denied to have done any favour. He submitted that initially it was in Sessions Case No.71 of 1998 wherein application Exhibit 25 was filed by a junior advocate seeking release of the accused on the ground of delay in trial and it was in course of the hearing of that application that the requests were made by the members of the Bar and thereafter the other cases were listed subsequently in view of the requests of other advocates. He next submitted that some of the orders of bail granted by him out of those cases were challenged before the High Court and the applications of the State were dismissed. The other orders of bail were being similar and having been passed on the same ground, they would have met the same fate. They were not challenged by the State, perhaps for that very reason, according to the pary-in-person.

3.5 The Party-in-person referred to two bail applications being Item Nos.12 and 13 in the statement of imputation, and submitted that they were the cases wherein the accused were released on bail not on the ground of delay but on merits. Bail Application No.1121 of 1999 at Serial No.12 was filed after charge-sheet, in succession to the previous Bail Application No.836 of 1999, which was before charge-sheet. The allegation was that applicant No.3 was released on bail without proper identification and advocate Shri M.N. Bhatt was favoured. It was submitted that if he wanted to do any favour to the advocate, he would have granted bail to all the four applicants. It was submitted that it was on judicial application of mind that he released one of the four accused and the new ground was not brought to his notice. The other Bail Application No.227 of 2000 was preceded by Bail Application No.168 of 2000 before charge-sheet. The earlier Bail Application was rejected because the medical report sent by the jail authorities was to the effect that the no surgery was required and the accused was advised to take rest for six weeks with regular follow up. In the subsequent bail application there was a report by the jail superintendent pursuant to a meeting of the Core Committee comprising of the District Magistrate, the District Superintendent of Police, the Sessions Judge, the Additional Sessions Judge and the Jail Superintendent, which was held pursuant to the directions of the Supreme Court. The report showed that the applicant was totally bed-ridden and his condition was precarious to such an extent that even for answering the call of nature, he had to take assistance of other prisoner and because of that the Jail Authorities were facing peculiar difficulties. It was submitted that in view of such facts obtained, the accused was released on humanitarian grounds, for which learned Additional Public Prosecutor had given no objection and the no objection was noted by the petitioner Judicial Officer in his notes.

3.6 Learned senior advocate for respondent No.2 submitted that the charges levelled against the petitioner Officer were in the nature of serious errors and irregularities in discharge of his judicial duties. According to him, the petitioner was a judicial officer and high standards of dispensation of duties as a Judge were expected. He submitted that the charges levelled against him are required to be appreciated in that perspective. He further submitted that the petitioner granted bail contrary to the well recognised principles and such orders were passed not in one or two stray matters but as many as in 13 cases. It was submitted that the conduct certainly showed a negligent and irresponsible approach in discharge of duty as a Judicial Officer and it was a lack of caution in the minimum. It was submitted that when such acts were repeated, they were rightly treated as misconduct. Learned senior advocate for respondent No.2 relied on decision in Prashanta Kumar Sarkar V/s. Ashis Chatterjy and another, 2010 14 SCC 496) to submit that the Supreme Court has laid down the factors to be borne in mind while considering the bail applications. The settled principles could not have been ignored consistently by the petitioner, submitted learned senior advocate.

Findings of Inquiry Officer

3.7 While holding the said charge to have been proved, the learned Inquiry Officer held that the delinquent had overlooked the guidelines laid down by Hon'ble the Apex Court for granting bail and that the delinquent, who was working as a senior judge in the District, was expected to be aware of the said settled provisions in the bail matters and could not have enlarged the accused on bail. According to the learned Inquiry Officer the said fact suggested that the delinquent was guilty of dereliction in discharging his function as a judicial officer and has acted in a manner unbecoming of a judicial officer. The relevant observations by the Inquiry Officer are extracted herein.

34. Thus, the approach of the delinquent on the perusal of the record which is produced before me, prima facie establishes that delinquent has over looked the guidelines laid down by the Honourable Apex Court as well as by the Honourable High Court in deciding the subsequent bail applications within a short span and after considering the applications on merits granted the bail to the concerned accused. The delinquent was working as a fairly Senior Judge in the District at Bhavanagar and was well aware of the settled legal position in the bail matters yet he enlarged the accused on bail without taking into consideration the basic guide lines laid down by the Honourable Apex Court i.e. the enormity of the charge, the nature of accusation, severity of the punishment which the conviction will entail etc., and granted the bail to the accused. The catena of decision rendered by the Honourable Supreme Court were also over looked by the delinquent in passing the order in bail matters. This fact goes to show that delinquent is guilty of dereliction in discharging his judicial function as a judicial officer and has acted in a manner unbecoming of a judicial officer.

3.8 The Inquiry officer discussed the connotation misconduct to conclude that the acts and conduct on part of the petitioner were in the nature of misconduct as there was a dereliction of duty.

35. If we read the definition of MISCONDUCT as discussed in the Black s Law Dictionary, 6th Edition then the Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehaviour delinquency, impropriety, mismanagement, offense, but not negligence or carelessness. Term Misconduct when applied in act of attorney, implies dishonest act or attempt to persuade court to jury by use of deceptive or reprehensible methods, Thus, even when there is transgression of some established and definite rule of action then such transgression would also amount to MISCONDUCT or even if prima facie there is a Dereliction from duty then the same would prima facie established the MISCONDUCT on the part of the delinquent.

3.9 As stated above, during the pendency of the First Inquiry No.12 of 2001, Second Inquiry being Departmental Inquiry No.01 of 2004 was commenced. The final decision dated 11th November, 2012 of the respondent No.2 High Court-the Disciplinary Authority contained common decision providing that order of dismissal of the delinquent from service be passed in terms of Rule 6(viii) of the Gujarat Civil Services (Disciplinary and Appeal) Rules, 1971.

3.10 As far the charges in the First Inquiry discussed above are concerned, in the final decision dated 11th November, 2012, it is observed that it is true that the charge of corruption is not proved but same may not assume much importance in view of the finding of the Inquiry Officer on charge Nos.2 and 3 which were found proved. In the final decision, the Disciplinary Authority was of the view that there were circumstances which showed the conduct of the delinquent to be a misconduct. It was noted that the delinquent was senior judicial officer and was aware of binding effect of the decision of the Supreme Court, and that he was required to deal with the bail matters and the contents of the application in light of merits and change of circumstances. According to the final decision, since there were number of cases where delinquent erred, it showed careless approach on his part and it became unbecoming of a judicial officer. It was further reasoned that though the allegation of favouritism and corrupt practice are not proved, in the second Departmental Inquiry which was simultaneously considered. Similar charges were found proved.

3.11 In the final decision, in which the Disciplinary Authority considered the charges of both the inquiries and the findings thereon, in the ultimate conclusion recorded that on an overall view of the entire matter, it was apparent that the actions of the delinquent, though may appear to be in purported discharge of judicial duties, in fact it was otherwise. It was observed that the High Court-Disciplinary Authority was not concerned with correctness or legality of the decisions, but the conduct which was, according to final conclusion, was negligent and amounted to gross abuse of powers. It was concluded that the same was actuated by improper motive with a desire to oblige himself or unduly favour one of the parties. It was, therefore, observed that the delinquent was guilty of dereliction of duty, acted in a manner unbecoming of a government servant in capacity of judicial officer and deserved only major penalty.

Charges in Second Inquiry