# Rajendra Prasad Bharti v. State of U.P. & Anr

- **Citation:** (2023) 2 ILRA 90
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-21
- **Case number:** Writ A No. 15770 of 2019
- **Bench:** Ramesh Sinha, Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-prasad-bharti-v-state-of-u-p-anr-49753
- **Pages:** 18

## Headnote

A. Constitution of India, 1950 - Article 226
- Scope of Judicial review while examining
the validity of decision of departmental
authorities - If the Enquiry Officer has
arrived at a finding by relying upon
inadmissible,
extraneous
and
hearsay
evidence and by ignoring relevant and
admissible evidence, then the High Court
is not only within its right to interfere with
such a finding, but is under a duty to
interfere so as to prevent a miscarriage of
justice - a departmental proceeding is a
quasi-judicial proceeding - enquiry officer
performs
a
quasi-judicial
function
-
enquiry officer has a duty to arrive at a
finding upon taking into consideration the
materials brought on record by the parties
- the enquiry officer is neither permitted
to collect any material from outside
sources during the conduct of the enquiry
nor is permitted to travel beyond the
charges and any punishment imposed on
the basis of a finding which was not the
subject-matter of the charges is wholly
illegal - He cannot enquire into the
allegations with which the delinquent
officer had not been charged with - In a
domestic enquiry fairness in the procedure
is a part of the principles of natural justice
(Para 45, 57)

B. Disciplinary Proceedings - Against
Judicial Officer - merely because the
order is wrong or the action taken could
have been different does not warrant
initiation
of
disciplinary
proceedings
against the judicial officer - there is a
possibility on a given set of facts to arrive
at a different conclusion but it is no
ground to indict a judicial officer for
taking one view - If in every case where
an order of a subordinate court is found to
be faulty a disciplinary action were to be
initiated,
the
confidence
of
the
subordinate judiciary will be shaken and
the officers will be in constant fear of
writing a judgment so as not to face a
disciplinary enquiry and thus judicial
officers
cannot
act
independently
or
fearlessly. (Para 58)

C. Disciplinary Proceedings - Removal
from
Service
-
Judicial
Officer
-
complainant filed a complaint against the
petitioner, Civil Judge (Junior Division),
 stating that his junior's client, had told
him that he had got the application
allowed by fulfilling the illegal demand of
the petitioner - another charge against
the petitioner was that he was running
two concurrent order sheets in a case and
passing different orders in different files
as per his whim, however there was no
charge that the petitioner had passed
contradictory orders for some extraneous
consideration
-
Held
-
complainant
statement was merely hearsay evidence,
full of material contradictions, but the
Enquiry Officer accepted the hearsay
evidence as gospel truth and ignored the
contradictions in the same - Enquiry
Officer totally ignored the statements of
the other relevant witnesses - Enquiry
Officer held the petitioner guilty of having
passed
contradictory
orders
without
dealing with the petitioner's explanation -
punishment order passed, taking into
consideration
orders
passed
by
the
petitioner in other cases, for which neither
any charge was leveled nor was any
2 All. Rajendra Prasad Bharti Vs. State of U.P. & Anr.
91
opportunity given to the petitioner to
submit his explanation - While it is
possible to arrive at a different conclusion
on a given set of facts, it is not grounds to
indict a judicial officer for taking one view
-
petitioner
should
not
have
been
penalized by removing him from service
merely for having passed wrong orders -
Explanation given by the petitioner in
respect of charge no. 1 was sufficient for
disproving charge no. 1 - punishment
order passed on the basis of material
which
was
extraneous,
vitiating
the
punishment order - order removing the
petitioner from the post of Civil Judge
(Junior
Division)
quashed,
and
the
petitioner reinstated in service - Except
for back wages, petitioner entitled to get
all the other benefits consequent to the
quashing of the removal order, including
seniority,

## Text

_Characters 0–39,942 of 62,428. This is a partial read: ask again with offset=39942 for what follows._

90 INDIAN LAW REPORTS ALLAHABAD SERIES

23. All the writ petitions are allowed.
----------
(2023) 2 ILRA 90
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.02.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
HON'BLE SUBHASH VIDYARTHI, J.

Writ A No. 15770 of 2019

Rajendra Prasad Bharti ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Varadraj Shreedutt Ojha, Mohd. Anas Khan

Counsel for the Respondents:
C.S.C., Gaurav Mehrotra

A. Constitution of India, 1950 - Article 226
- Scope of Judicial review while examining
the validity of decision of departmental
authorities - If the Enquiry Officer has
arrived at a finding by relying upon
inadmissible,
extraneous
and
hearsay
evidence and by ignoring relevant and
admissible evidence, then the High Court
is not only within its right to interfere with
such a finding, but is under a duty to
interfere so as to prevent a miscarriage of
justice - a departmental proceeding is a
quasi-judicial proceeding - enquiry officer
performs
a
quasi-judicial
function
-
enquiry officer has a duty to arrive at a
finding upon taking into consideration the
materials brought on record by the parties
- the enquiry officer is neither permitted
to collect any material from outside
sources during the conduct of the enquiry
nor is permitted to travel beyond the
charges and any punishment imposed on
the basis of a finding which was not the
subject-matter of the charges is wholly
illegal - He cannot enquire into the
allegations with which the delinquent
officer had not been charged with - In a
domestic enquiry fairness in the procedure
is a part of the principles of natural justice
(Para 45, 57)

B. Disciplinary Proceedings - Against
Judicial Officer - merely because the
order is wrong or the action taken could
have been different does not warrant
initiation
of
disciplinary
proceedings
against the judicial officer - there is a
possibility on a given set of facts to arrive
at a different conclusion but it is no
ground to indict a judicial officer for
taking one view - If in every case where
an order of a subordinate court is found to
be faulty a disciplinary action were to be
initiated,
the
confidence
of
the
subordinate judiciary will be shaken and
the officers will be in constant fear of
writing a judgment so as not to face a
disciplinary enquiry and thus judicial
officers
cannot
act
independently
or
fearlessly. (Para 58)

C. Disciplinary Proceedings - Removal
from
Service
-
Judicial
Officer
-
complainant filed a complaint against the
petitioner, Civil Judge (Junior Division),
 stating that his junior's client, had told
him that he had got the application
allowed by fulfilling the illegal demand of
the petitioner - another charge against
the petitioner was that he was running
two concurrent order sheets in a case and
passing different orders in different files
as per his whim, however there was no
charge that the petitioner had passed
contradictory orders for some extraneous
consideration
-
Held
-
complainant
statement was merely hearsay evidence,
full of material contradictions, but the
Enquiry Officer accepted the hearsay
evidence as gospel truth and ignored the
contradictions in the same - Enquiry
Officer totally ignored the statements of
the other relevant witnesses - Enquiry
Officer held the petitioner guilty of having
passed
contradictory
orders
without
dealing with the petitioner's explanation -
punishment order passed, taking into
consideration
orders
passed
by
the
petitioner in other cases, for which neither
any charge was leveled nor was any
2 All. Rajendra Prasad Bharti Vs. State of U.P. & Anr.
91
opportunity given to the petitioner to
submit his explanation - While it is
possible to arrive at a different conclusion
on a given set of facts, it is not grounds to
indict a judicial officer for taking one view
-
petitioner
should
not
have
been
penalized by removing him from service
merely for having passed wrong orders -
Explanation given by the petitioner in
respect of charge no. 1 was sufficient for
disproving charge no. 1 - punishment
order passed on the basis of material
which
was
extraneous,
vitiating
the
punishment order - order removing the
petitioner from the post of Civil Judge
(Junior
Division)
quashed,
and
the
petitioner reinstated in service - Except
for back wages, petitioner entitled to get
all the other benefits consequent to the
quashing of the removal order, including
seniority, etc. (62, 62, 62, 65)

Allowed. (E-5)

List of Cases cited:

1.Muzaffar Husain Vs St. of U.P., 2022 SCC
OnLine SC 567

2.Union of India Vs K.K. Dhawan (1993) 2 SCC
56

3.Rajasthan High Court Vs Ved Priya, 2020 SCC
OnLine SC 337

4.Union of India Vs P. Gunasekaran, (2015) 2
SCC 610

5.Sadhna Chaudhary Vs St. of U.P., (2020) 11
SCC 760

6.P.C. Joshi Vs St. of U.P., (2001) 6 SCC 491

7.Roop Singh Negi Vs Punjab National Bank,
(2009) 2 SCC 570

8.M.V. Bijlani Vs U.O.I., (2006) 5 SCC 88

9.Narinder
Mohan
Arya
VS
United
India
Insurance Co. Ltd., (2006) 4 SCC 713

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Sandeep Dixit, the
learned Senior Advocate assisted by Sri
Varadraj Shreedutt Ojha Advocate, the
learned counsel for the petitioner and Sri
Gaurav Mehrotra Advocate assisted by Sri
Utsav Misra and Ms. Rani Singh Advocates
for the opposite party no. 2 High Court of
Judicature at Allahabad.

2. By means of the present Writ
Petition, the petitioner has challenged the
order dated 02.04.2019 whereby he has been
removed from the post of Civil Judge (Junior
Division). He has also challenged the annual
confidential report for the year 2011-12, the
order dated 29.01.2013 passed by the
Administrative Judge rejecting the petitioner's
representation against the adverse remarks in
his annual confidential report for the year
2011-12 whereby it was proposed that a
departmental enquiry be conducted against
the petitioner and the recommendations dated
07.12.2016 of a Committee of three Hon'ble
Judges of this Court rejecting the petitioner's
representation dated 05.11.2015 against the
adverse remarks, as also the resolutions dated
11.01.2017
passed
by
the
Hon'ble
Administrative Committee accepting the
recommendations of the three member
committee
and
the
resolution
dated
12.11.2017
passed
by
the
Hon'ble
Administrative Committee directing the
matter to be placed before the Full Court.

3. Briefly stated, facts of the case are
that the petitioner was appointed as a Civil
Judge (Junior Division) on 26.05.2006. The
petitioner remained posted as Additional
Civil Judge (Junior Division) in the outlying
Court at Sambhal in District Moradabad and
thereafter he was transferred to Mirzapur.

4. On 25.11.2011, while the petitioner
was posted as Civil Judge (Junior Division)
Sambhal, one Sri. Mahesh Pal Singh Yadav
92 INDIAN LAW REPORTS ALLAHABAD SERIES
Advocate gave a complaint to the District
Judge Moradabad, leveling the following
allegations against the petitioner: -

"माननीयtuin U;k;k/kh'k egksn;]

tuin& eqjknkcknA

fo"k; %& U;kf;d vf/kdkjh lEHky Jh
jktsUnz izlkn Hkkjrh th dh nks"kiw.kZ dk;Zizk.kh ds
lEcU/k esa &

egksn;]

lfou; fuosnu gS fd U;kf;d vf/kdkjh
Jh jktsUnz izlkn Hkkjrh egksn; dh dk;Z iz.kkyh ds
lEcU/k esa fuEufyf[kr fuosnu djuk gS &

1& ;g fd Jh jktsUnz izlkn Hkkjrh
U;kf;d vf/kdkjh egksn; U;k;ky; esa izfrfnu nks cts
fnu cSBrs gS vkSj dsoy vtsZUV ekeys tSls& csy
fjekaM o nkos dks tks mlh fnu nk;j gksrs gS] ij gh
lquokbZ gksrh gS vkSj dksbZ Qkby ij u rks dksbZ
lquokbZ gksrh gS] uk gh dksbZ vkns'k gksrk gSA

2& ;g fd mDr lHkh vtekurh; o
xEHkhj izd`fr ds vijk/kks esa mDr egksn; lacf/kr i{k
ls gelkt gksdj mlh fnu tekur dk vkns'k ns nrs
gSA feyus ij [kkfjt dj nsrs gSA

3& ;g fd mDr vf/kdkjh egksn; u;s
nkoks esa /kujkf'k ysdj gh LFkxukns'k nsrs gS vU;Fkk
flQZ uksfVl gh tkjh djrs gSA

4& ;g fd 156 1⁄431⁄2 lh0vkj0ih0lh0 ds
izk0i= dks Lohdkj djus gsrq 2000@:i;s u nsus ij
[kkfjt dj nsrs gSA ,sls gh dksVZ u01 esa ihBklhu jgrs
gq;s mDr vf/kdkjh egksn; us izdh.kZ okn la0 58@11
jkefd'kksj cuke jkefuokl izkFkhZ }kjk iSls uk nsus ij
izk0i= 15-4-11 dks [kkfjt dj fn;k okngw oknh }kjk
mDr vf/kdkjh dh vuqfpr ekax iwjh djus ij mldh
QnsZgdke fudky dj nwljh QnsZgdke yxkdj izk0
i= mlh fnu 15-4-11 dks Lohdkj dj fn;k x;kA
izek.k Lo:i Nk;kizfr layXu gSA

5& ;g fd mDr Jh jktsUnz izlkn Hkkjrh
}kjk U;k;ky; ds lHkh U;kf;d O;oLFkk [kjkc dj jgh
gSA dksbZ Hkh dk;Z cxSj iSls fy;s mDr vf/kdkjh
egksn; ugh dj jgs gSA okndkfj;ks dk mDr
dk;Ziz.kkyh ls fo'okl lekIr gksrk tk jgk gSA mDr
vf/kdkjh egksn; dh dk;Ziz.kkyh ls okndkfj;ks dk
vfgr gks jgk gSA vkSj U;k;ky; dh xfjek धूदमल gks
jgh gS vkSj bZekunkj okndkjh U;k; ls oafpr gks jgs
gSA

6& ;g fd Jh jktsUnz izlkn Hkkjrh
egksn; tc ls lEHky ls LFkkukUrfjr vk;s gS] Hkz"Vkpkj
dks c<+kok fn;k gSA buds dk;Zdky dks fdlh Hkh ekg
dh QkStnkjh fjek.M i=koyh Fkkuk& g;kruxj o
lEHky x<+h dks ryc dj yh tk; rFkk u;s nhokuh
oknh okn Hkh ryc dj fy;s tk;A Jheku th ds
le{k mDr lHkh rF;ksa dh lPpkbZ lkeus tk;sxhA

U;k;ky; dh lkQ lqFkjh o xfjek cuk;s
j[kus ds fy;s vki ls djc) izkFkZuk gS fd mDr Jh
jktsUnz izlkn Hkkjrh U;kf;d vf/kdkjh egksn; lEHky
nks"kiw.kZ dk;kZs dh tkap dj muds f[kykQ dk;Zokgh
dh tk;sA

Jheku th dh vfr d`ik gksxhA

 25@11@11

 IzkkFkhZ

 egs'k iky flag ;kno ,M0

 flfoy dksVZ] lEHkyA"

5. In the order dated 01.12.2011
passed in Writ B No. 69275 of 2011, this
Court had observed that in Suit No. 1426 of
2011 the petitioner had passed an interim
order dated 19.11.2011 directing the parties
to maintain status quo whereas he passed
an order dated 26.11.2011 in Suit No. 1478
of 2011 issuing an interim mandate to
implement an award, which ran contrary to
the earlier order dated 19.11.2011. This
Court directed the Registrar General to call
for an explanation from the petitioner. On
02.01.2012, the petitioner submitted an
explanation stating that in the subsequent
suit, different pleadings were made and
different evidence had been produced,
which had led to passing of the order dated
26.11.2011.

6. On 15.12.2011 Sri. Mahesh Pal
Singh Yadav Advocate sent a complaint to
the Hon'ble Chief Justice, leveling the
following allegations against the petitioner:
-

"माननीयeq[; U;k;k/kh'k egksn;]

mPp U;k;ky; bykgkckn

fo"k; %& U;kf;d vf/kdkjh lEHky Jh
jktsUnz izlkn Hkkjrh th dh nks"kiw.kZ dk;Zizk.kh ds
lEcU/k esa &

egksn;]
2 All. Rajendra Prasad Bharti Vs. State of U.P. & Anr.
93

lfou; fuosnu gS fd U;kf;d vf/kdkjh
Jh jktsUnz izlkn Hkkjrh egksn; dh dk;Ziz.kkyh ds
lEcU/k esa fuEufyf[kr fuosnu djuk gS &

1& ;g fd Jh jktsUnz izlkn Hkkjrh
U;kf;d vf/kdkjh egksn; U;k;ky; esa izfrfnu 2 cts
fnu esa cSBrs gS vkSj dsoy vtsZUV ekeys tSls& csy
fjekaM o nkos dks tks mlh fnu nk;j gksrs gS] ij gh
lquokbZ gksrh gS vkSj dksbZ jsxqyj Qkby ij u rks dksbZ
lquokbZ gksrh gS] uk gh dksbZ vkns'k gksrk gSA

2& ;g fd lHkh vtekurh; o xEHkhj
izd`fr ds vijk/kks esa mDr egksn; lEcfU/kr i{k ls
voS/k /kujkf'k ysdj mlh fnu tekur dk vkns'k nsrs
gS u feyus ij [kkfjt dj nsrs gSA

3& ;g fd mDr vf/kdkjh egksn; u;s
nkoks esa /kujkf'k ysdj Hkh LFkxu vkns'k nsrs gS vU;Fkk
flQZ uksfVl gh tkjh djrs gSA

4& ;g fd 156 1⁄431⁄2 lh0vkj0ih0lh0 ds
izk0i= dks Lohdkj djus gsrq 2000@:i;s ysrs gS u
nsus ij [kkfjt dj nsrs gSA ,sls gh dksVZ u01 esa
ihBklhu jgrs gq;s mRrjkf/kdkjh egksn; us izdh.kZ okn
la0 58@11 jkefd'kksj cuke jkefuokl izkFkhZ }kjk iSls
uk nsus ij izk0i= 15-4-11 dks [kkfjt dj fn;k okngw
oknh }kjk mDr vf/kdkjh dh vuqfpr ls lh/ks lEidZ
djus o mDr vf/kdkjh vuqfpr ekax iwjh djus ij
mDr izdhZ.k okn dh QnZs dke fudky dj nwljh
QnsZgdke yxkdj izk0 i= mlh fnu 15-4-11 dks
Lohdkj dj fn;k x;kA izek.k Lo:i Nk;kizfr layXu
gSA

5& ;g fd mDr Jh jktsUnz izlkn Hkkjrh
}kjk U;k;ky; ds lHkh U;kf;d O;oLFkk [kjkc dj
j[kh gS dksbZ Hkh dk;Z cxSj lqfo/kk 'kqYd fy;s mDr
vf/kdkjh egksn; ugh dj jgs gSA okndkfj;ks dk mDr
dk;Ziz.kkyh ls fo'okl lekIr gksrk tk jgk gSA mDr
vf/kdkjh egksn; dh dk;Ziz.kkyh ls okndkfj;ksa dk
vfgr gks jgk gSA vkSj U;k;ky; dh xfjek धूदमल gks
jgk gS vkSj bZekunkj okndkjh U;k; ls oafpr gks jgs
gSA

6& ;g fd ihBklhu egksn; tc ls
lEHky esa LFkkukUrfjr gksdj कायषभार lEHkkyk gS
Hkz"Vkpkj dks c<+kok fn;k gSA buds dk;Zdky dh fdlh
Hkh ekg dh QkStnkjh fjekaM i=koyh Fkkuk g;kruxj
o lEHky] o Fkkuk gtjr uxj x

8& ;g fd vfHk;qDr iquhr R;kxh dh
U;k;ky; esa mifLFkfr ds cxSaj gh mDr vf/kdkjh }kjk
tekur dk vkns'k ikfjr dj fn;k x;k vkSj U;k;ky;
ds vkns'k dk ikyu u djus ds ckotwn vfHk;qDr dh
fjgkbZ vkns'k ns fn;k x;kA vfHk;qDr ds futh cU/ki=
ij gLrk{kj ugh djk;s x;s eq0v0la0 119@11 gSA

U;k;ky; dh lkQ lqFkjh Nfo o xfjek
cuk;s j[kus ds fy;s vki ls djc) izkFkZuk gS fd mDr
Jh jktsUnz izlkn Hkkjrh U;k;f;d vf/kdkjh egksn;
lEHky nks"kiw.kZ dk;kZs dh tkap dj muds f[kykQ
dk;Zokgh dh tk;sA Jheku~ th dh vfr d`ik gksxhA

15@12@2011

IzkkFkhZ

 egs'k iky flag ;kno ,MoksdsV

 flfoy dksVZ] lEHkyA"

7. The District Judge had awarded
adverse entries in the annual confidential
report of the petitioner for the year 2011-12
withholding his integrity on the basis of
allegations
leveled
in
the
aforesaid
complaint.

8. A representation given by the
petitioner against the adverse entries
awarded to him was rejected by the Hon'ble
Administrative Judge by means of an order
dated 29.01.2013. The Petitioner gave a
representation dated 05.11.2015, which was
rejected by a Committee comprising of
three Hon'ble Judges.

9. On 21.01.2012, the petitioner gave
a reply to the District Judge stating that the
allegations
were
absolutely
false.
Regarding Case No. 58/2011, he stated that
the application had been rejected for want
of prosecution but thereafter the Advocate
appeared and made a request, whereupon
the application was accepted, and a
direction was issued to register a case and
investigate. The petitioner stated that the
order was not passed due to any vested
interest, but in the interest of the litigant
after his Advocate appeared and made an
oral request.

10. In furtherance of the complaint
dated 15.12.2011 that had been sent to the
Hon'ble Chief Justice, the Administrative
Judge called for a report from the District
94 INDIAN LAW REPORTS ALLAHABAD SERIES
Judge. The District Judge got an enquiry
conducted through the Enquiry Officer Sri.
Sanjay
Kumar
Verma,
H.J.S.,
who
submitted a report on 02.07.2016 stating
that he had conducted an enquiry and had
recorded the statement of the complainant
Sri. Mahesh Pal Singh Yadav Advocate,
who, besides leveling some general and
vague allegations, had stated that the
petitioner had dismissed Misc. Case No.
58/2011 titled Ram Kishore versus Ram
Nivas, under Section 156 (3) Cr.P.C. as he
did not get any money but the application
was subsequently accepted when the
applicant contacted the petitioner directly
and fulfilled his illegal demand. The
complainant
further
stated
that
the
petitioner had granted bail to accused
Puneet Tyagi in Case Crime No. 119/2011
under Sections 498 A, 452, 323, 324, 504
& 506 I.P.C. and Sections 3/4 of the Dowry
Prohibition Act in spite of time having been
sought by the A.P.O., without the accused
being present in the Court.

11. The Enquiry Officer recorded that
apart
from
the
statement
of
the
complainant, there was no other evidence
in support of the allegations. The Enquiry
Officer had recorded the statement of Sri.
Parvez Alam Advocate, who had stated that
he was the Counsel in Misc. Case No. 58/
2011 and he had not given any illegal
amount to the petitioner. He further stated
that the complainant Sri. Mahesh Pal Singh
Yadav was not a Counsel in Misc. Case No.
58/ 2011.

12. The Enquiry Officer had recorded
the statement of Sri. Ram Kishore, the
applicant of Misc. Case No. 58/ 2011, who
stated that he had not given any illegal
amount to the petitioner. He further stated
that he did not know the complainant Sri.
Mahesh Pal Singh Yadav Advocate and he
was not a Counsel in Misc. Case No. 58/
2011.

13. The Enquiry Officer held that
earlier the aforesaid application had been
dismissed in default of appearance and no
order had been passed on the merits of the
case, but subsequently after hearing, the
application was allowed and although the
petitioner had committed a procedural error
in
restoring
the
case
without
any
application, as the applicant of the case and
his Counsel Sri. Parvez Alam Advocate had
stated that no illegal payment had been
made and as Sri. Mahesh pal Singh Yadav
Advocate was not a Counsel in the case, it
could not be said that the petitioner had
accepted any illegal gratification.

14. Regarding the allegation of the
complainant that bail was granted to Puneet
Tyagi without his appearance, the Enquiry
Officer recorded the statement of the then
Court Moharrir Sri. Laksham Singh, who
had stated that the Court had passed an
order for taking the accused in custody, he
had taken the accused in custody and he
had sent the ''Robkar Haziri' of the accused
Puneet to Police Station Asmoli, which had
been produced before the Enquiry Officer.
The Enquiry Officer further recorded that
the bail application had signature of the
accused Puneet and there was no material
available to establish that the accused
Puneet Tyagi had been granted bail without
his appearance and after taking illegal
gratification.

15. The District Judge sent a report
dated 11.07.2016 to the High Court, stating
that he was in agreement with the aforesaid
enquiry report and on 22.11.2018, the
Administrative Judge passed an order after
perusal of the enquiry report, that no
further action was required in the matter.
2 All. Rajendra Prasad Bharti Vs. State of U.P. & Anr.
95

16. Another complaint was given to
the District Judge by one Amjadi Begum on
24.12.2011 stating that she had filed Suit
No. 633/2011, in which the petitioner had
passed an order dated 25.07.2011 directing
the parties to maintain status quo and not to
raise any construction. Subsequently, one
Shafiq Ahmad filed Suit no. 925/2011 for
restraining Amjadi Begum from interfering
in constructions, Amjadi Begum appeared
and opposed the prayer and no interim
order could be passed. Concealing the fact
of pendency of the aforesaid two suits,
Shafiq Ahmad filed another Suit No.
1066/2011 and by misleading the Court, he
obtained permission to lay a lintel. The
complainant also alleged that the order had
been passed after taking some undue
benefit.

17. The Administrative Judge had
sought a report from the District Judge on
the aforesaid complaint of Amjadi Begum.
The
District
Judge
got
an
enquiry
conducted by Sri. Sanjay Kumar Verma,
H.J.S. The petitioner had submitted his
reply stating that he had passed the interim
order in Suit No. 1066/2011 on the basis of
the material available before him and the
application under Order XXXIX Rule 4
could not be disposed off as the record of
the case had been summoned by the
Revisional Court.

18. The Enquiry Officer had sent a
notice to the complainant Amjadi Begum,
but it was reported that she had died and
none of his heirs came forward.

19. In his report dated 06.01.2017, the
Enquiry Officer concluded that at the time
of granting the interim order in Suit No.
1066/2011, there was nothing on record
mentioning about pendency of the earlier
suits. There was nothing to establish that
the order had been passed after taking any
illegal benefit and the complaint was
baseless.

20.

On
21.02.2017,
the
Administrative Judge passed an order after
perusal of the enquiry report, consigning
the complaint to record.

21. Thereafter a charge sheet was
prepared against the petitioner, which was
approved by the Hon'ble Chief Justice on
22.03.2017, leveling the following two
charges: -

"1. That while you were posted as
Civil Judge (Junior Division) Sambhal,
Moradabad since 17.12.2009 to 16.04.2012
you passed judicial order violating the
procedure established by law. You passed
two contradictory orders U/s 39 (2) CPC in
O.S. No. 1478/2011 and 1426//2011. Both
the suits were relating in Award dated
01.08.2007.

2. That you were running two
concurrent
order
sheets
of
Criminal
Miscellaneous No. 58/2011, Ram Kishore
Vs. Ram Nivas and others application U/s
156 (3) Cr.P.C. and were passing different
orders in different files as per your whim by
violating the legal norms and procedures
established by law and the orders passed
by you adversely reflect upon your integrity
and reputation."

22. The charge-sheet mentions the
following documentary evidences to be
adduced in support of the charges: -

(i) complaint dated 25.11.2011 of
Sri Mahesh Pal Singh, Advocate.

(ii)
inquiry
report
dated
23.03.2011 of Sri A. K. Upadhyay,
Additional District Judge, Court No. 1,
Moradabad.
96 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii)
both
the
order
sheets
maintained to run on the record of Criminal
Misc. Application No. 58 of 2011, under
Section 156(3) Cr.P.C. moved by Ram
Kishore on 08.03.2011.

(iv) copy of complaint and order
sheets of O.S. Nos. 1426 of 2011 Mohd.
Ishtiyak v. Mohd. Irfan & Ors. and 1478 of
2011, Mohd. Musharraf & Ors. v. Mohd.
Ishtiyak & Ors.

23. In furtherance of the charge sheet, an
inquiry was conducted. The inquiry report
contains a narration that the inquiry emanates
from the annual confidential remarks recorded by
the District Judge on 28.09.2012, for the year
2011-12, on the basis whereof a vigilance bureau
inquiry had been initiated vide order dated
20.06.2013 passed by the Hon'ble Chief Justice.
The petitioner submitted his written statement
dated 19.04.2017 denying the charges. Regarding
passing contradictory orders in two suits, the
petitioner submitted that the cause of action of
both the suits was quite different and the
documents filed in both the suits were also
different and neither of the parties to any of the
two suits made any objections or protest against
any of the orders passed by him.

24. Regarding charge no. 2 that he was
running two concurrent order sheets in one case,
the petitioner submitted that the allegation was
false and it originated from a complaint dated
25.11.2011 filed by Sri Mahesh Pal Singh Yadav,
Advocate, who was not a counsel in the case, as
was apparent from the statements of Sri Mahesh
Pal Singh Yadav, Sri Parvej Alam and the
applicant Ram Kishore recorded during an earlier
inquiry. In the inquiry report dated 23.04.2016, the
inquiry officer had found the allegations to be
false.

25. The Inquiry Officer noted the
submissions of the petitioner regarding
charge no. 1 that he had passed orders in
Suits No. 1478 of 2011 and 1426 of 2011
on the basis of material placed before him
in the aforesaid suits. He further submitted
that in the subsequent Suit No. 1478 of
2011, there was no mention of the previous
Suit No. 1426 of 2011 and of the interim
order passed in it. The inquiry report
mentions that the petitioner 'had adduced
his defence evidences through presentation
of certain documentary evidences', but the
particulars
of
the
defence
evidences
adduced by the petitioner has not been
disclosed in the enquiry report and there is
no discussion regarding the same.

26. The inquiry report contains a
narration of certain orders passed by the
petitioner in as many as 9 cases having
been collected by the inquiry officer. These
orders were not mentioned in the charge
sheet and there is nothing on record to
indicate that this material relied upon by
the inquiry officer was provided to the
petitioner.

27. The Inquiry Officer concluded
that ''a study of the orders passed by the
petitioner makes it amply clear that the
petitioner was habitual in granting interim
injunction on regular basis; that the settled
principle of law on this point is that
granting ex-parte interim injunction is an
exception whereas issuing of notice to hear
both the parties is the general rule. The act
of the Charged Officer seems violating this
settled principles of law.'

28. The Inquiry Officer came to a
conclusion that the petitioner had passed
contradictory orders in two suits originating
from the same award and he was guilty of
charge no. 1. However, the Inquiry Officer
further recorded that no opinion could be
formed on this point, as the matter was sub-
2 All. Rajendra Prasad Bharti Vs. State of U.P. & Anr.
97
judice in Hon'ble High Court in Civil Misc.
Writ Petition No. 69275 of 2011.

29. Regarding charge no. 2, the
Investigating Officer relied upon the
statements of the complainant Sri Mahesh
Pal Singh Yadav, Sri Parvej Alam,
Advocate and Sri Ram Kishore.

30. Sri. Mahesh Pal Singh had stated
that the petitioner used to sit late in his
Court, at about 02:00 p.m.; that he used not
to hear regular matters, but he used to take
up only urgent matters like bail and fresh
suits; that his reputation was not good and
there was a general perception that he used
to take bribes; that he used to pass
defective orders. However, the said witness
had further stated that the petitioner did not
ever demand bribe from him. He said that
Misc. Case No. 58 of 2011 under Section
156 (3) Cr.P.C. titled Ram Kishore versus
Ram Nivas was filed by his junior and his
junior's client had told him that he had got
the application allowed by fulfilling the
illegal demand of the petitioner, but the
witness did not know as to what was the
alleged illegal demand. Sri. Mahesh Pal
Singh stated that he had made a complaint
against the petitioner on the basis of the
order passed by him and on the basis of the
general perception. He stated that he had
three junior associates - Sri. Prashant
Gupta, Sri. Monu Gupta and 1-2 more
Advocates used to sit on his seat but he did
not know their names. He did not know
Ram Kishore prior to 15.04.2011 and he
did not know as to how Ram Kishore came
to his seat.

31. Upon being cross-examined by
the petitioner, Sri. Mahesh Pal Singh Yadav
stated that he did not know as to how many
cases had been decided by the petitioner on
merits during the year 2011-12 and that the
petitioner had performed 189.95% of the
quota of the work assigned to him. He
admitted that he was not an Advocate in the
matter of Ram Kishore and he had not
argued the matter. Earlier his junior and
Ram Kishore had told him that the
application had been rejected and later on
Ram Kishore told that the application had
been allowed.

32. The second witness Sri. Parvez
Alam Advocate stated that on 15.04.2011
he had filed the application Ram Kishore
versus Ram Nivas under Section 156 (3)
Cr.P.C. and the petitioner had told him that
the application had been dismissed in
default; that he made an oral prayer to the
petitioner that he had gone to drink water
and his application be decided on merits,
whereupon
the
petitioner
heard
his
submissions and passed order thereon. His
client Ram Kishore had not come to the
Court on that date. Ram Kishore had paid
him merely Rs.250/- to 300/- as fee for the
application. He further stated that the wife
of Sri. Mahesh Pal Singh Yadav was a
Member of Zila Panchayat and he seldom
used to come to the Court and that he was
habitual of filing false complaints for
gaining cheap popularity. He categorically
stated that the petitioner was famous as an
honest officer.

33.
 The
Enquiry
Officer
had
examined the applicant Ram Kishore also,
who stated that he had given an application
under
Section
156
(3)
Cr.P.C.
on
08.03.2011 through Sri. Parvez Alam
Advocate but he did not go to the Court to
do pairvi of the application after that date.
He categorically stated that he did not go to
the Court on 15.04.2011; that he did not
pay any bribe and that he did not tell to Sri.
Mahesh Pal Singh Yadav or to any other
person that he had paid bribe.
98 INDIAN LAW REPORTS ALLAHABAD SERIES

34. The Enquiry Officer noted the
submission of the petitioner that the charge
emanates
from
a
complaint
dated
25.11.2011 filed by Sri. Mahesh Pal Singh
Yadav Advocate in relation to the order
passed by the petitioner in Cr. Case No.
58/2011 under Section 156 (3) Cr.P.C. An
enquiry had been initiated and the Enquiry
Officer had submitted a report holding the
petitioner not guilty. The District Judge
Moradabad had submitted the Report to the
High Court.

35. However, the Enquiry Officer
held
that
"a
report
dated
23.03.12
submitted by Addl. District and Sessions
Judge has clearly mentioned that I asked
learned Civil Judge (Jr. Division) Sanbhal
about the said facts and he admitted that
the signatures of both the order sheets (one
photo state copy) belong to him and he very
well admitted the signatures of both the
order sheets but surprisingly the previous
order sheet of the said file on which the
application under section 156 (3) Cr.P.C.
had been rejected has been misplaced by
the Presiding Officer. Thus, Presumption
goes against the presiding Officer that he
has deliberately misplaced the order sheet
because of the complaint and as the file
was kept in his judgment box, then also the
presumption goes against him. Thus the
contents of the complaint are proved
against the Presiding Officer that he was
running two parallel order sheets in the
same file and on one order sheet he has
rejected the application moved under
Section 156 (3) Cr.P.C. whereas on another
order sheet he has allowed the application
under Section 156 (3) Cr.P.C. for the
reasons best known to him."

36. The petitioner submitted his
explanation against the enquiry report
wherein he stated that the Enquiry Officer
had made a verbatim reproduction of the
statement of the complainant Mahesh Pal
Singh Yadav that was recorded by the
Special Vigilance Enquiry Officer on
26.07.2014 and he had merely changed its
date to 28.06.2017 and the statements of
Sri. Parvez Alam and Sri. Ram Kishore
were also verbatim copies of their previous
statements
recorded
by
the
Special
Vigilance Enquiry Officer, indicating that
the Enquiry Officer did not hold any
independent enquiry. The Enquiry Officer
did not
take
into
consideration
the
categorical statement of Sri. Mahesh Pal
Singh Yadav that the petitioner did not
demand bribe from him and that he had
been told about the application by his
junior Monu Gupta, but Monu Gupta was
not examined. The petitioner had further
submitted that the conclusion of the
Enquiry Officer, which has been quoted
above, was also a verbatim reproduction
from the earlier report of Special Vigilance
Officer A. K. Upadhyay.

37. However, on 22.11.2017 the
Administrative Committee of the High
Court resolved to accept the Enquiry
Report dated 29.08.2017 and to place the
matter before the Hon'ble Full Court. In its
meeting held on 26.05.2018, the Full Court
resolved to punish the petitioner with
removal from service. Accordingly, the
Government
issued
an
Office
Memorandum dated 02.04.2019 removing
the petitioner from service.

38. Sri. Sandeep Dixit Senior
Advocate appearing for the petitioner has
submitted that the petitioner has been
punished for the charges for which earlier
an adverse entry had been awarded to him
and an enquiry had been held in which the
petitioner was not found guilty and after
taking into consideration the enquiry
2 All. Rajendra Prasad Bharti Vs. State of U.P. & Anr.
99
report, the Administrative Judge had closed
the matter. He has submitted that the
petitioner has subsequently been punished
for
the
same
charges,
which
is
impermissible
in
law.
He
has
next
submitted that the punishment order has
been passed after taking into consideration
orders passed by the petitioner in 9 other
cases, regarding which neither any charge
was leveled not was any opportunity was
given to the petitioner to submit his
explanation and the punishment order has
been passed on the basis of material which
was
extraneous,
which
vitiates
the
punishment order.

39. Sri. Dixit has relied upon the
judgments in the cases of Narinder Mohan
Arya v. United India Insurance Co. Ltd.,
(2006) 4 SCC 713, M. V. Bijlani v. Union
of India, (2006) 5 SCC 88, State of
Uttaranchal v. Kharak Singh, (2008) 8 SCC
236, Roop Singh Negi v. Punjab National
Bank, (2009) 2 SCC 570, P.C. Joshi v. State
of U.P., (2001) 6 SCC 491 and some other
judgments and we will consider the same in
the following paragraphs.

40. Per Contra, Sri. Gaurav Mehrotra,
the learned Counsel for the High Court has
submitted that the petitioner being a
judicial officer, the charge of misconduct
alone was sufficient to support the
punishment order of removal and it was not
necessary that the allegation of extraneous
consideration ought to have been proved
against the petitioner. He has submitted that
the adverse entry given in the annual report
for the year 2011-12 was not given by way
of punishment and, therefore, the principle
of double jeopardy is not attracted to the
present case and the earlier adverse entry
was no bar for passing the punishment
order. He further submitted that earlier, the
Administrative Judge had ordered closure
of the complaint merely after a preliminary
enquiry and no detailed enquiry had been
held in the matter and, therefore, the
closure
of
the
complaint
by
the
Administrative Judge would not bar the
subsequent
detailed
enquiry
and
the
consequent order of removal.

41. Sri. Mehrotra has relied upon the
decisions in the cases of Muzaffar Husain
v. State of U.P., 2022 SCC OnLine SC
567, Union of India v. K.K. Dhawan (1993)
2 SCC 56, Rajasthan High Court v. Ved
Priya, 2020 SCC OnLine SC 337 and
Union of India v. P. Gunasekaran, (2015) 2
SCC 610 and has submitted that while
exercising the power of judicial review, this
Court should not re-examine the evidence
led before the Enquiry Officer and this
Court is not exercising the power of appeal.

42. It is true that the scope of judicial
review while examining the validity of any
decision
under
Article
226
of
the
Constitution
of
India
is
limited
to
examining errors in the decision making
process. In Muzaffar Husain v. State of
U.P., 2022 SCC OnLine SC 567, the
Hon'ble Supreme Court held that: -

"8. It is trite to say that the power
of judicial review conferred on the
constitutional Court is not that of an
appellate authority but is confined only to
the decision-making process. Interference
with
the
decision
of
departmental
authorities is permissible only if the
proceedings were conducted in violation of
the principles of natural justice or in
contravention
of
statutory
regulations
regulating such proceedings or if the
decision on the face of it is found to be
arbitrary or capricious. The Courts would
and should not act as an appellate Court
and reassess the evidence led in the
100 INDIAN LAW REPORTS ALLAHABAD SERIES
domestic enquiry, nor should interfere on
the ground that another view is possible on
the material on record. If the inquiry has
been fairly and properly conducted, and the
findings are based on evidence, the
adequacy of the evidence or reliability of
evidence would not be a ground to interfere
with
the
findings
recorded
in
the
departmental enquiries."

43. In Union of India v. P.
Gunasekaran (2015) 2 SCC 610, the
Hon'ble Supreme Court held that: -

"12. Despite the well-settled
position, it is painfully disturbing to note
that the High Court has acted as an
appellate authority in the disciplinary
proceedings,
reappreciating
even
the
evidence before the enquiry officer. The
finding on Charge I was accepted by the
disciplinary
authority
and
was
also
endorsed by the Central Administrative
Tribunal. In disciplinary proceedings, the
High Court is not and cannot act as a
second court of first appeal. The High
Court, in exercise of its powers under
Articles 226/227 of the Constitution of
India, shall not venture into reappreciation
of the evidence. The High Court can only
see whether:

(a) the enquiry is held by a
competent authority;

(b) the enquiry is held according
to the procedure prescribed in that behalf;

(c) there is violation of the
principles of natural justice in conducting
the proceedings;

(d) the authorities have disabled
themselves from reaching a fair conclusion
by some considerations extraneous to the
evidence and merits of the case;

(e) the authorities have allowed
themselves to be influenced by irrelevant or
extraneous considerations;

(f) the conclusion, on the very
face of it, is so wholly arbitrary and
capricious that no reasonable person could
ever have arrived at such conclusion;

(g) the disciplinary authority had
erroneously failed to admit the admissible
and material evidence;

(h) the disciplinary authority had
erroneously admitted inadmissible evidence
which influenced the finding;

(i) the finding of fact is based on
no evidence."

44. Sri. Gaurav Mehrotra has lastly
submitted
that
the
Full
Court
has
recommended removal of the petitioner
from service and this Division Bench
should not doubt the collective wisdom of
the Full Court. He has relied upon a
judgment of the Hon'ble Supreme Court in
Rajasthan High Court v. Ved Priya, 2020
SCC OnLine SC 337, wherein the Hon'ble
Supreme Court held that: -

"13. At the outset, we may
observe that both the appellant as well as
the impugned judgment have elucidated the
correct statement of law regarding the
width and sweep of judicial review by a
High Court over the decisions taken by its
Full Court on administrative side. Although
it would be a futile task to exhaustively
delineate the scope of writ jurisdiction in
such matters but a High Court under
Article 226 has limited scope and it ought
to interfere cautiously. The amplitude of
such jurisdiction cannot be enlarged to sit
as an ''appellate authority', and hence care
must be taken to not hold another possible
interpretation on the same set of material
or substitute the Court's opinion for that of
the disciplinary authority. This is especially
true given the responsibility and powers
bestowed upon the High Court under
Article 235 of the Constitution. The
2 All. Rajendra Prasad Bharti Vs. State of U.P. & Anr.
101
collective wisdom of the Full Court
deserves due respect, weightage and
consideration in the process of judicial
review.

45. As has already been noticed in the
preceding paragraphs, in the present case the
Enquiry Officer has relied upon the orders
passed in 9 other cases, regarding which no
charge had been framed against the petitioner,
the petitioner was not given an opportunity to
give his explanation regarding those 9 orders, the
Enquiry Officer had ignored the contradictions in
the statement of Sri. Mahesh Pal Singh Yadav
and he had ignored that his evidence was merely
hearsay evidence and the Enquiry Officer totally
ignored the statements of the other witnesses Sri.
Parvez Alam Advocate and Sri. Ram Kishore -
the applicant in the application under Section 156
(3) Cr.P.C. The findings recorded by the Enquiry
Officer in such a manner by relying upon
inadmissible extraneous and hearsay evidence
and by ignoring relevant and admissible
evidence, can only be said to be perverse and this
Court is not only within its right to interfere with
such a finding, but is under a duty to interfere so
as to prevent a miscarriage of justice. Our view
finds support by the view expressed by the
Hon'ble Supreme Court in Narinder Mohan
Arya v. United India Insurance Co. Ltd.,
(2006) 4 SCC 713, wherein it was held that: -

"26..... In a suit filed by a
delinquent employee in a civil court as also
a writ court, in the event the findings
arrived at in the departmental proceedings
are questioned before it, it should keep in
mind the following:

(1) the enquiry officer is not
permitted to collect any material from
outside sources during the conduct of the
enquiry.

(2)
In
a
domestic
enquiry
fairness in the procedure is a part of the
principles of natural justice.

(3) Exercise of discretionary
power involves two elements--(i) objective,
and (ii) subjective and existence of the
exercise of an objective element is a
condition precedent for exercise of the
subjective element.