# Syed Hasan v. High Court of Judicature at Allahabad and others

- **Citation:** (2012) 3 ILRA 1566
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-11-06
- **Case number:** Civil Misc. Writ Petition No. 8068 of 2006
- **Bench:** Ashok Bhushan, Abhinava Upadhya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/syed-hasan-v-high-court-of-judicature-at-allahabad-and-others-42368
- **Pages:** 17

## Headnote

Constitution
of
India,
Article
226punishment-reduction
in
rank-on
ground-while
acting
Session
Judge
granted
second
bail
on
extraneous
considerations-enquiry officer not found
the charge proved-punishment on basis
of
extraneous
considerations-without
giving
details-held
punishmentunsustainable.

Held: Para-37

From the above discussions, we are of
the view that although the learned
Enquiry Judge held that bail was granted
on account of extraneous consideration
but no extraneous consideration having
either been referred to or proved, the
charge of misconduct against the officer
cannot be said to be proved. Further the
opinion of the learned Enquiry Judge
that substantially on the same ground
first bail application was rejected is also
not a proof of misconduct by Charged
Officer
while
allowing
the
bail
application unless the granting of bail is
referred
to
or
found
out
on
any
extraneous consideration which having
not been proved in the present case, the
charge
of
misconduct
against
the
Charged Officer cannot be held to be
proved.
Case Law discussed:
A.I.R. 1967 SC 1274; (1992) SC 124; (1993) 2
SCC 56; (2001) 6 S.C.C. 491; (2007) 4 SCC
247; A.I.R. 1997 SC 2286; 2006 (5) AWC
4519; 2002 (46) ALR 138

## Text

_Characters 0–39,966 of 57,235. This is a partial read: ask again with offset=39966 for what follows._

1566 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
after the expiry of two years on the ground of
unsatisfactory performance. Consequently,
after the expiry of two years and, in absence
of any extension of the probation period,
unsatisfactory performance cannot be taken
into consideration, nor Clause 9 of the G.O.
dated 02.01.1999 could be invoked.

8. In the light of the aforesaid, the
impugned order could not be sustained and is
quashed. The writ petition is allowed and a
writ of mandamus is issued commanding the
respondents to permit the petitioner to
continue in service. Since the petitioner has
not worked for this period he will not be
entitled for any salary but this period would
be included in the length of service.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE ABHINAVA UPADHYA, J.

Civil Misc. Writ Petition No. 8068 of 2006

Syed Hasan, Ist Addl. Civil Judge (Sr.
Division), Varanasi

 ...Petitioner
Versus
High Court Of Judicature And Another

 ...Respondents

Counsel for the Petitioner:
Sri Uday Pratap Singh
Sri Anil Tiwari
Sri Shailendra
Sri Vijay Bahadur Singh

Counsel for the Respondents:
Si Uday Pratap Singh
Sri Anil Tiwari
Sri Shailendra
Sri Vijay Bahadur Singh

Constitution
of
India,
Article
226punishment-reduction
in
rank-on
ground-while
acting
Session
Judge
granted
second
bail
on
extraneous
considerations-enquiry officer not found
the charge proved-punishment on basis
of
extraneous
considerations-without
giving
details-held
punishmentunsustainable.

Held: Para-37

From the above discussions, we are of
the view that although the learned
Enquiry Judge held that bail was granted
on account of extraneous consideration
but no extraneous consideration having
either been referred to or proved, the
charge of misconduct against the officer
cannot be said to be proved. Further the
opinion of the learned Enquiry Judge
that substantially on the same ground
first bail application was rejected is also
not a proof of misconduct by Charged
Officer
while
allowing
the
bail
application unless the granting of bail is
referred
to
or
found
out
on
any
extraneous consideration which having
not been proved in the present case, the
charge
of
misconduct
against
the
Charged Officer cannot be held to be
proved.
Case Law discussed:
A.I.R. 1967 SC 1274; (1992) SC 124; (1993) 2
SCC 56; (2001) 6 S.C.C. 491; (2007) 4 SCC
247; A.I.R. 1997 SC 2286; 2006 (5) AWC
4519; 2002 (46) ALR 138

(Delivered by Hon'ble Ashok Bhushan, J.)

1. This writ petition has been filed by
the petitioner, a judicial officer, challenging
an order reducing the petitioner in rank
consequent to disciplinary proceedings
conducted by the High Court.

2. Counter and rejoinder affidavits
have been exchanged between the parties
and with the consent of learned counsel for
the parties, the writ petition is being finally
decided.
3 All] Syed Hasan V. High Court of Judicature at Allahabad and others
1567

3. Brief facts, which emerge from
pleadings of the parties, are; the petitioner, a
member of U.P. Judicial Service, was
promoted as
Additional District and
Sessions Judge in January, 1997. The
petitioner at the relevant time was posted as
Second Additional District and Sessions
Judge, Rae Bareli. In Case crime No. 311 of
2002, under Section 302, 395 and 120-B of
I.P.C. a bail application was moved before
the District Judge on 9th September, 2002.
A transfer application was filed by the
complainant for transferring the case from
the court of Special Judge, which although
was rejected but the District Judge suo moto
transferred the bail application to the court
of the petitioner. The bail application was
filed by one Akhilesh Kumar Singh who
was accused in an incident dated 3rd July,
2002 in which allegation was on Akhilesh
Kumar Singh and others persons that they
went in the morning at the residence of
Rakesh Pandey, the brother of the
complainant, and entering in his lawn, have
open fired. One of the assailants was
arrested on the spot. Rakesh Pandey, who
was shot, was taken to a nursing home
where he died. The bail application was
heard and rejected on 18th October, 2002
by the petitioner (Second Additional
District and Sessions Judge, Rae Bareli). In
the second bail application certain new
circumstances and facts were mentioned on
the basis of which the accused claimed
grant of bail. The complainant filed a
transfer application before the District
Judge on 2nd September, 2002 alleging that
an information has been received from one
Ghanshyam Mishra, Advocate that the
officer having taken an amount of
Rs.2,50,000/- as gratification from the
accused, is going to allow the bail
application. Earlier 1st November, 2002
was fixed by the Charged Officer as a date
for disposal of the second bail application
on which date an adjournment application
was filed by the complainant praying for 15
days time. The Charged Officer adjourned
the hearing and fixed 2nd November, 2002
as a date for hearing of the second bail
application
on
which
date
transfer
application was filed before the District
Judge. The District Judge rejected the
transfer application on 2nd November, 2002
with the observation that the Charged
Officer may expeditiously disposed of the
bail application. The Charged Officer fixed
7th November, 2002 for hearing of the bail
application on which date a request for
adjournment was again made by the
complaint, which was refused and after
hearing learned counsel for the accused and
the
District
Government
Counsel
(Criminal), the bail application was allowed
by order dated 7th November, 2002. A
complaint dated 16th November, 2012 was
filed against the Charged Officer by Anurag
Kumar Pandey, the brother of the deceased,
to the High Court. The disciplinary inquiry
was initiated against the Charged Officer by
charge-sheet dated 6th October, 2004. In the
disciplinary
inquiry,
department
led
evidence consisting of seven witnesses and
certain
documentary
materials.
The
Charged Officer also filed certain papers in
the inquiry. According to the department the
second bail was granted substantially on the
same grounds as were raised in the first bail
application and there was no circumstances
justifying the grant of second bail. On the
other hand the Charged Officer stated
before the learned Enquiry Judge that the
second bail was granted on new grounds
which were available after rejection of the
first bail application. The inquiry was
conducted by an Hon'ble Judge of this
Court who submitted inquiry report dated
11th October, 2005 holding that the
Charged Officer granted bail on extraneous
consideration and therefore failed to
1568 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
maintain absolute integrity and devotion to
duty and committed misconduct under Rule
3 of the Government Servant Conduct
Rules, 1956. The inquiry report was
forwarded to the Charged Officer by the
High Court for submitting his reply. The
Charged Officer by letter dated 6th October,
2005 submitted his reply reiterating that the
second bail application was allowed due to
certain new circumstances and facts which
were brought before him in the second bail
application. The matter was taken by the
Administrative Committee of the High
Court on 29th November, 2005 on which
date the Administrative Committee resolved
to accept the inquiry report and referred the
matter to the Full Court for consideration on
quantum of punishment. The Full Court
vide its resolution dated 17th December,
2005 accepted the inquiry report and
resolved that officer be punished by
reversion to the next lower rank from his
present substantive rank. The resolution of
the Full Court was forwarded to the State
Government. The State Government issued
an order on 17th January, 2006 reverting the
petitioner from the post of Additional
District and Sessions Judge to the post of
Civil Judge (Senior Division). The writ
petition has been filed praying for a writ of
certiorari quashing the order dated 17th
January, 2006 and further for a writ of
mandamus directing the respondents to
permit the petitioner to function and
discharge the duties as the member of U.P.
Higher Judicial Service.

4. Sri Shailendra, learned counsel for
the petitioner, in support of the writ petition,
contends that learned Enquiry Judge having
himself found that the charge of illegal
gratification not proved, there was no
material to prove charge of granting bail on
extraneous consideration and the learned
Enquiry Judge committed error in holding
charge proved. It is submitted that neither
there was any material nor any finding as to
what was the extraneous consideration for
granting second bail. It is submitted that
even if the learned Enquiry Judge found that
the second bail application ought not to
have been allowed, the said finding was not
sufficient to prove any misconduct on the
part of the petitioner who has decided the
second bail application on the materials
available and it is further submitted that
error of judgment alone is not sufficient for
proving the charge of misconduct. Learned
counsel for the petitioner further submits
that petitioner's work and conduct for the
last 27 years was satisfactory and at no
point of time any adverse comment or any
allegation was found in his working.
Learned counsel for the petitioner further
submits that there were several new
circumstances and materials which were
brought in the second bail application on the
basis of which second bail application was
allowed. It is submitted that the Charged
Officer has referred to those new grounds
and circumstances which were highlighted
in his written argument submitted in the
inquiry. The new grounds referred to are; (i)
filing of charge-sheet, (ii) site plan filed
along with the charge-sheet, (iii) statement
of witnesses under Section 161 of Cr.P.C.,
(iv) post-mortem report, (v) entries of G.D.
etc. It is submitted that the bail application
was decided after giving full opportunity to
the parties and was based on cogent
reasons.

5. Sri Manish Goyal, learned counsel
appearing for the respondents, refuting the
submissions of learned counsel for the
petitioner, contends that charges against the
petitioner having been proved in the
disciplinary inquiry, which inquiry report
has been accepted by the Full Court, this
Court in exercise of writ jurisdiction shall
3 All] Syed Hasan V. High Court of Judicature at Allahabad and others
1569
neither reappraise the evidence nor interfere
with the findings of fact recorded in the
inquiry report. It is submitted that there was
no new circumstances or grounds for grant
of second bail that too within 21 days. He
further submits that from the materials
brought on the record, it was proved that
second bail was granted on extraneous
consideration, the Enquiry Judge has rightly
recorded such finding. The punishment has
been awarded on sufficient grounds which
needs no interference by this Court.

6. Learned counsel for the parties have
relied on various judgments of the Apex
Court as well as this Court which shall be
referred to while considering the submissions
in detail.

7. We have considered the submissions
of learned counsel for the parties and have
perused the record.

8. The petitioner was proceeded with in
the disciplinary inquiry on following charge:-

"You are hereby charged as under:-

That you, while posted as IInd Addl.
District & Sessions Judge Rae-Bareli
allowed second bail application of main
accused Akhilesh Singh who was absconder
with a cash of price of Rs.2,500/- on his
head, in a case of broad daylight murder u/s
302, 304, 147 & 148 I.P.C., registered at
Crime No.311/2002, P.S. Kotwali, RaeBareli having rejected the first bail
application on substantially the same
grounds,
without
affording
sufficient
opportunity of hearing to the complainant or
the
prosecution,
for
extraneous
considerations and you thereby failed to
maintain absolute integrity and complete
devotion to duty and thus committed
misconduct within the meaning of Rule 3 of
the U.P. Government Servant Conduct Rules
1956.
........"

9. A perusal of the above charge
indicates that following are the allegations on
which the charge of misconduct within the
meaning of Rule 3 of the U.P. Government
Servant Conduct Rules, 1956 was based:-

(i) Rejected the first bail application
substantially on the same grounds;

(ii)
Without
affording
sufficient
opportunity of hearing to the complainant or
the prosecution; and

(iii) For extraneous consideration.

10. The charge against the petitioner
was thus regarding the order passed by him
allowing the second bail application on 7th
November, 2002 copy of which order has
been filed as Annexure-6 to the writ petition.
The first bail application was rejected by the
petitioner on 18th October, 2002 which order
has been brought on the record as Annexure4 to the writ petition. The Charged Officer in
his written submission, which was submitted
before the learned Enquiry Judge, referred to
several grounds, which according to the
Charged Officer, were not available at the
time of first bail application. The grounds as
mentioned
in
the
written
submission
submitted before the Enquiry Judge are as
under:-

"New grounds taken by accused in IInd
Bail Application

(which were not mentioned in/available at
the time of First Bail Application)

1. Charge Sheet filed in case which
brought knowledge of new facts. (Para-7 of
1570 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Main appl.) This ground non-existent
earlier.

[This point was considered at the time
of disposal of IInd Bail Application]

2. Site Plan (filed with C.S.) was
discussed with FIR for doubting place of
occurrence. (Ground of Bail No.3, 4). This
ground came into existence after filing of
Charge Sheet. Non-existent earlier.

[Ground no.3 was considered at the
time of disposal of IInd Bail appl.].

3. Neighbours, independent witnesses
not named the accused Akhilesh. (Ground
of Bail No.9 of II B.A.). This ground came
into existence after filing of Charge Sheet.
Non-existent earlier.

4. Entries & contents of Panchnama &
related documents discussed. (Ground of
Bail No.1- o l n% 10 of B.A.) This ground
not available earlier. Become available
only after supply of copies of documents
and statements of witnesses, after filing of
Charge-sheet. [Bail order also based on
Ground of bail no.1- o l.]

5. Statement of 5 witnesses u/s 161
CrPC discussed for doubting prosecution
case. (Ground of Bail No.8- v o l n). This
ground
non-existent
earlier.
Become
available only after supply of copies of
documents and statement of witnesses. [Bail
order also based on Ground of bail no.8-
v]]

6. Post Mortem Report discussed for
doubting prosecution case. (Para 11 and 17
of Main Appl.). This ground non-existent
earlier. Become available only after supply
of copies of Post Mortem report, after filing
of Charge Sheet.

7. Entries of G.D. discussed for
doubting prosecution case. (Para 17 of
Main Appl.). This ground non-existent
earlier. Become available only after supply
of copies to accused."

11. Learned Enquiry Judge considered
the above grounds taken by the Charged
Officer and repelled the same. Learned
Enquiry
Judge
also
examined
the
allegations against the petitioner of granting
the second bail application after taking
illegal gratification. The charge up to that
extent was disbelieved by the Enquiry
Judge himself. The concluding portion of
the report of the Enquiry Judge gives the
basis for holding the charge proved against
the petitioner. It is useful to quote the
conclusion of learned Enquiry Judge in the
last portion of the report which is to the
following effect:-

"The first bail application had been
rejected on 18.10.2002, while the second
bail application was filed after merely 11
days i.e. on 29.10.2002 and was granted on
the 9th day i.e. 7.11.2002. There was no
change of circumstances in such a short
period. As there was no new material to
justify the grant of second bail and the
second bail application was filed after 11
days of the rejection of the first bail
application and was granted about three
weeks after rejection of the first bail
application it appears that the second bail
application was granted on extraneous
consideration. Oral evidence has been
given to the effect that there was transaction
of illegal gratification. Ghanshyam Mishra
one of the departmental witnesses deposed
that the transaction was done through one
Jai Karan. What has been said is that Jai
Karan Shukla is said to have stated that he
had settled with the Presiding Officer for
Rs.2 and half lacs. However, there is no
3 All] Syed Hasan V. High Court of Judicature at Allahabad and others
1571
direct evidence on the point. The evidence
in this regard apart from being hearsay is
insufficient. The allegation that money was
paid to the Presiding Officer is therefore
not proved but the allegation that the bail
was granted on extraneous consideration
stands proved in view of the circumstances
discussed above. The charge is therefore
proved that the charged officer granted bail
on extraneous consideration and therefore
failed to maintain absolute integrity and
devotion to duty and committed misconduct
under Rule 3 of the Government Servant
Conduct Rules, 1956."

12. The inquiry report along with the
comments of the Officer were considered
by the Administrative Committee in its
meeting dated 29th November, 2005 by
which resolution the report was accepted
and the matter was referred to the Full Court
for
consideration
on
quantum
of
punishment. The Full Court vide its
resolution dated 17th December, 2005
resolved to accept the enquiry report.
Following resolution was taken by the Full
Court:-

"Considered the enquiry report dated
11.08.2005 submitted by Hon'ble Mr.
Justice Janardan Sahai, Enquiry Judge and
comments dated 06.10.2005 of the officer
concerned thereon in view of A.C.
resolution dated 29.11.2005.

Resolved that the enquiry report be
accepted.

It is further resolved that the officer be
punished by reversion to the next lower
rank from his present substantive rank.

Immediate effect be given."

13. Before we proceed to consider the
rival submissions of learned counsel for the
parties, as noted above, it is useful to look
into the parameters and principles on which
a charge can be proved against a judicial
officer while passing an order in exercise of
his judicial power.

14. The argument that there can be no
disciplinary inquiry with regard to an order
passed by an officer exercising quasi
judicial/judicial function has been repelled
long back in the case of S. Govind Menon
vs. Union of India reported in A.I.R. 1967
SC 1274. In the said case the Charged
Officer was working as Commissioner
under
Madras
Hindu
Religious
and
Charitable Endowments Act, 1951 and had
passed order which was quasi judicial in
character. The disciplinary proceedings
were challenged on the ground that the
action of the officer was quasi judicial in
nature and was not subject to administrative
control of the Government. The said
argument was repelled and following was
laid down by the Apex Court in the said
judgment:-

" ..... We are unable to accept the
proposition contended for by the appellant
as correct. Rule 4(1) does not impose any
limitation or qualification as to the nature
of the act or omission in respect of which
disciplinary proceedings can be instituted.
Rule
4(1)(b)
merely
says
that
the
appropriate Government competent to
institute disciplinary proceedings against a
member of the Service would be the
Government under whom such member was
serving at the time of the commission of
such act or omission. It does not say that the
act or omission must have been committed
in the discharge of his duty or in the course
of his employment as a Government
servant. It is therefore open to the
1572 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Government
to
take
disciplinary
proceedings against the appellant in respect
of his acts or omissions which cast a
reflection upon his reputation for integrity
or good faith or devotion to duty as a
member of the Service. It is not disputed
that the appellant was, at the time of' the
alleged misconduct, employed as the First
Member of the Board of Revenue and he
was at the same time performing the duties
of Commissioner under the Act in addition
to his duties as the First Member of the
Board of Revenue. In our opinion, it is not
necessary that a member of the Service
should have committed the alleged act or
omission in the course of discharge of his
duties as a servant of the Government in
order that it may form the subject-matter of
disciplinary proceedings. In other words, if
the act or omission is such as to reflect on
the reputation of the officer for his integrity
or good faith or devotion to duty, there is no
reason why disciplinary proceedings should
not be taken against him for that act or
omission even though the act or omission
relates to an activity in regard to which
there is no actual master and servant
relationship. To put it differently, the test is
not whether the act or omission was
committed by the appellant in the course of
the discharge of his duties as servant of the
Government; The -test is whether the act or
omission has some reasonable connection
with the nature and condition of his service
or whether the act or omission has cast any
reflection upon the reputation of the
member of the Service for .integrity or
devotion to duty as a public servant. We are
of the opinion that even if the appellant was
not subject to the administrative control of
the Government when he was functioning as
Commissioner under the Act and was not
the servant of the Government subject to its
orders at the relevant time, his act or
omission as Commissioner could form the
subject-matter of disciplinary proceedings
provided the act or omission would reflect
upon his reputation for integrity or devotion
to duty as a member of the Service......"

15. In the case of Union of India and
others vs. A.N. Saxena reported in (1992)
SCC 124, the question arose as to whether
disciplinary action can be taken in regard to
action taken or purported to be done in the
course
of
judicial
or
quasi-judicial
proceeding. Following was laid down in
paragraph 8 of the said judgment:-

"8. In our view, an argument that no
disciplinary action can be taken in regard
to action taken or purported to be done in
the course of judicial or quasi-judicial
proceedings is not correct. It is true that
when an officer is performing judicial or
quasi-judicial
functions
disciplinary
proceedings regarding any of his actions in
the course of such proceedings should be
taken only after great caution and a close
scrutiny of his actions and only if the
circumstances so warrant. The initiation of
such proceedings, it is true, is likely to
shake the confidence of the public in the
officer concerned and also if lightly taken
likely to undermine his independence.
Hence the need for extreme care and
caution before initiation of disciplinary
proceedings against an officer performing
judicial or quasi-judicial functions in
respect of his actions in the discharge or
purported to discharge his functions. But it
is not as if such action cannot be taken at
all. Where the actions of such an officer
indicate culpability, namely, a desire to
oblige himself or unduly favour one of the
parties or an improper motive there is no
reason why disciplinary action should not
be taken."
3 All] Syed Hasan V. High Court of Judicature at Allahabad and others
1573

16. Again in the case of Union of
India and others vs. K.K. Dhawan reported
in (1993)2 SCC 56, a three Judge Bench of
the Apex Court examined the issue in
context of an Income Tax Officer who was
exercising quasi judicial function. Referring
to the judgment of the Apex Court in S.
Govind Menon's case (supra), following
tests to determine as to when a disciplinary
inquiry can be initiated against an officer
exercising quasi judicial power, were laid
down. Paragraph 19 of the said judgment is
quoted below:-

"19. The above case, therefore, is an
authority
for
the
proposition
that
disciplinary proceedings could be initiated
against the government servant even with
regard to exercise of quasi-judicial powers
provided :

(i) The act or omission is such as to
reflect on the reputation of the government
servant for his integrity or good faith or
devotion to duty, or

(ii)there is prima facie material
manifesting recklessness or misconduct in
the discharge of the official duty, or

(iii)the officer had failed to act
honestly or in good faith or had omitted to
observe the prescribed conditions which are
essential for the exercise of statutory
power."

17. Paragraphs 26, 28 and 29 of the
judgment in Union of India and others vs.
K.K. Dhawan's case (supra) which are
relevant for the present case, laid down as
under:-

"26. In the case on hand, article of
charge clearly mentions that the nine
assessments covered by the article of
charge were completed

(i) in an irregular manner,

(ii) in undue haste, and

(iii) apparently with a view to confer
undue favour upon the assessees concerned.
(Emphasis supplied)

Therefore, the allegation of conferring
undue favour is very much there unlike Civil
Appeal No. 560/91. If that be so, certainly
disciplinary action is warranted. This Court
had occasion to examine the position. In
Union of India & Ors. v. A.N. Saxena,
[1992] 3 SCC 124 to which one of us
(Mohan, J.) was a party, it was held as
under:

"It was urged before us by learned
counsel for the respondent that as the
respondents was performing judicial or
quasi-judicial functions in making the
assessment orders in question even if his
actions were wrong they could be corrected
in an appeal or in revision and no
disciplinary proceedings could be taken
regarding such actions.

In our view, an argument that no
disciplinary action can be taken in regard
to actions taken or purported to be done in
the course of judicial or quasi-judicial
proceedings is not correct. It is true that
when an officer is performing judicial or
quasi-judicial
functions
disciplinary
proceedings regarding any of his actions in
the course of such proceedings should be
taken only after great caution and a close
scrutiny of his actions and only if the
circumstances so warrant. The initiation of
such proceedings, it is true, is likely to
shake the confidence of the public in the
1574 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
officer concerned and also if lightly taken
likely to undermine his independence.
Hence, the need for extreme care and
caution before initiation of disciplinary
proceedings against an officer performing
judicial or quasi-judicial functions in
respect of his actions in the discharge or
purported to discharge his functions. But it
is not as if such action cannot be taken at
all. Where the actions of such an officer
indicate culpability, namely a desire to
oblige himself or unduly favour one of the
parties or an improper motive there is no
reason why disciplinary action should not
be taken."
.........

28. Certainly, therefore, the officer
who exercises judicial or quasi-judicial
powers acts negligently or recklessly or in
order to confer undue favour on a person is
not acting as a Judge. Accordingly, the
contention of the respondent has to be
rejected. It is important to bear in mind that
in the present case, we are not concerned
with the correctness or legality of the
decision of the respondent but the conduct
of the respondent in discharge of his duties
as an officer. The legality of the orders with
reference to the nine assessments may be
questioned in appeal or revision under the
Act. But we have no doubt in our mind that
the Government is not precluded from
taking the disciplinary action for violation
of the Conduct Rules. Thus, we conclude
that the disciplinary action can be taken in
the following cases

(i) Where the officer had acted in a
manner as would reflect on his reputation
or integrity or good faith or devotion to
duty; (ii)if there is prima facie material to
show recklessness or misconduct in the
discharge of his duty;

(iii)if he has acted in a manner which
is unbecoming of a government servant;

(iv)if he had acted negligently or that
he omitted the prescribed conditions which
are essential for the exercise of the statutory
powers;

(v) if he had acted in order to unduly
favour a party-,

(vi) if he had been actuated by corrupt
motive however, small the bribe may be
because Lord Coke said long ago "though
the bribe may be small, yet the fault is
great."

29. The instances above catalogued
are not exhaustive. However, we may add
that for a mere technical violation or merely
because the order is wrong and the action
not falling under the above enumerated
instances,
disciplinary
action
is
not
warranted. Here, we may utter a word of
caution. Each case will depend upon the
facts and no absolute rule can be
postulated."

18. In context of the judicial officers
of the State of U.P. two cases need special
reference. In the case of P.C. Joshi vs. State
of U.P. and others reported in (2001)6
S.C.C. 491 the disciplinary proceedings was
drawn against a judicial officer regarding
orders passed by the officer deciding bail
applications. Following was laid down in
paragraph 7 of the judgment:

"7. In the present case, though
elaborate enquiry has been conducted by
the Enquiry Officer, there is hardly any
material worth the name forthcoming
except to scrutinize each one of the orders
made by the appellant on the judicial side to
arrive at a different conclusion. That there
3 All] Syed Hasan V. High Court of Judicature at Allahabad and others
1575
was possibility on a given set of facts to
arrive at a different conclusion is no ground
to indict a judicial officer for taking one
view and that too for alleged misconduct for
that reason alone. The Enquiry Officer has
not found any other material, which would
reflect on his reputation or integrity or good
faith or devotion to duty or that he has been
actuated by any corrupt motive. At best he
may say that the view taken by the appellant
is not proper or correct and not attribute
any motive to him which is for extraneous
consideration that he had acted in that
manner. 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. Indeed the words of caution are
given in K.K. Dhawans case [supra] and
A.N. Saxenas case [supra] that 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. In
spite of such caution, it is unfortunate that
the High Court has chosen to initiate
disciplinary
proceedings
against
the
appellant in this case."

19. In the case of Ramesh Chander
Singh vs. High Court of Allahabad and
another reported in (2007)4 SCC 247 a
three Judge Bench of the Apex Court had
occasion to consider a case of judicial
officer of the State of U.P. In the said case
the judicial officer was proceeded with
departmentally on allegations made against
him in orders passed granting bail. The
allegation against the officer was that he
was paid a sum of Rs.80,000/- for grant of
bail and the bail order was passed by the
officer on extraneous consideration with
oblique motives on insufficient grounds. It
is useful to quote the allegations which were
noted in paragraph 4, they are as under:-

"4. In the transfer application filed by
the brother of the complainant, there was
an allegation that a sum of Rs. 80,000/- was
paid and that it was settled through a
library clerk with the involvement of two
other clerks. In the transfer application, he
also alleged that the brother and father of
accused Ram Pal were found going in and
coming out of the residence of the appellant.
Despite all these allegations, no charge was
framed against the appellant that he had
received illegal gratification for granting
bail. The charge sheet contained the only
allegation that the bail order was passed by
the appellant for extraneous consideration
with oblique motives on insufficient grounds
and that the appellant was guilty of
misconduct and failed to maintain absolute
integrity and devotion to duty within the
meaning of Rule 3 of U.P. Government
Servants Conduct Rules, 1956. The charge
sheet as well as the statement of facts are
clubbed together and the gist of allegations
is contained in paragraphs 6 and 7 of the
charge sheet."

20. The Apex Court in the said case
after considering the materials and evidence
on record held that mere fact that judgment
and orders passed by the judicial officer are
wrong is not a ground for initiating
disciplinary inquiry. Following was laid
down in paragraphs 11, 12 and 17 which are
as under:-

"11. We fail to understand as to how
the High Court arrived at a decision to
initiate disciplinary proceedings solely
based on the complaint, the contents of
which were not believed to be true by the
1576 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
High Court. If the High Court were to
initiate disciplinary proceedings based on a
judicial order, there should have been
strong grounds to suspect officer's bona
fides and the order itself should have been
actuated by malice, bias or illegality. The
appellant-officer was well within his right to
grant bail to the accused in discharge of his
judicial functions. Unlike provisions for
granting bail in TADA Act or NDPS Act,
there was no statutory bar in granting bail
to the accused in this case. A Sessions
Judge was competent to grant bail and if
any disciplinary proceedings are initiated
against the officer for passing such an
order, it would adversely affect the morale
of subordinate judiciary and no officer
would be able to exercise this power freely
and independently.

12. This Court on several occasions
has disapproved the practice of initiation of
disciplinary proceedings against officers of
the subordinate judiciary merely because
the judgments/orders passed by them are
wrong. The appellate and revisional courts
have been established and given powers to
set aside such orders. The higher courts
after hearing the appeal may modify or set
aside erroneous judgments of the lower
courts. While taking disciplinary action
based on judicial orders, High Court must
take extra care and caution.
...........

17. In Zunjarrao Bhikaji Nagarkar v.
Union of India, AIR 1999 SC 2881, this
Court
held
that
wrong
exercise
of
jurisdiction by a quasi judicial authority or
mistake of law or wrong interpretation of
law cannot be the basis for initiating
disciplinary proceeding. Of course, if the
Judicial Officer conducted in a manner as
would reflect on his reputation or integrity
or good faith or there is a prima facie
material
to
show
recklessness
or
misconduct in discharge of his duties or he
had acted in a manner to unduly favour a
party or had passed an order actuated by
corrupt motive, the High Court by virtue of
its power under Art. 235 of the Constitution
may exercise its supervisory jurisdiction.
Nevertheless, under such circumstances it
should be kept in mind that the Judges at all
levels have to administer justice without
fear
or
favour.
Fearlessness
and
maintenance of judicial independence are
very essential for an efficacious judicial
system. Making adverse comments against
subordinate judicial officers and subjecting
them to severe disciplinary proceedings
would ultimately harm the judicial system at
the grassroot level."

21. The Apex Court in the case of
High Court of Judicature at Bombay vs.
Shirish Kumar Rangrao Patil and another
reported in A.I.R. 1997 S.C. 2631, had
considered the imputation against the
judicial officer of demanding illegal
gratification. The Apex Court laid down
that lymph-nodes (cancerous cells) of
corruption constantly keep creeping into the
vital veins of judiciary and the need to stem
is out by judicial surgery lies on judiciary
itself by its self imposed or corrective
measures or disciplinary action. It is useful
to quote following observations made by
the Apex Court in paragraph 16 of the
judgment which is as under:-

"16. ..... The Tymph-nodes (cancerous
cells ) of corruption constantly keep
creeping into the vital veins of judiciary and
the need to stem it out by judicial surgery
lies on judiciary itself by its self-imposed or
corrective measures or disciplinary action
under the doctrine of control enshrined in
Articles 235,124(6) of the constitution. It
would, therefore, be necessary that there
3 All] Syed Hasan V. High Court of Judicature at Allahabad and others
1577
should be constant vigil by the High Court
concerned on its subordinate judiciary and
self-introspection. What is most necessary is
to stem out the proclivity of the corrupt
conduct rather than to catch when the
corrupt demands made and acceptance of
illegal gratification. Corruption in judiciary
cannot
be
committed
without
some
members of the Bar become privy to the
corrupt. The vigilant watch by the High
court, and many a time by the members of
the Bar, is the sustaining stream to catch
the corrupt and to deal with the situation
appropriately. At the same time the High
Court is the protector of the subordinate
judiciary. Often some members of the bar,
in particular, in Muffasil courts, attempt to
take undue advantage of their long standing
at the bar and attempt to abuse their
standing by bringing or attempting to bring
about diverse form of pressures and pinpricks on junior judicial officers or
stubborn and stern and unbendable officers.
If they remain unsuccessful, to achieve their
nefarious purpose, some members of the
Bar indulge in mudslinging without any
base, by sending repeated anonymous
letters
against
the
judicial
officer
questioning
their
performance/
capacity/integrity. The High Court should,
therefore, take care of the judicial officers
and protect them from such unseeming
attempts or pressures so as to maintain
their morale and independence or the
judicial officer and support the honest and
upright officers."

22. In the case of High Court of
Judicature at Bombay vs. Uday Singh
reported in A.I.R. 1997 SC 2286, which
was again a case of disciplinary inquiry
against a judicial officer, following was laid
down in paragraph 13 of the judgment
which is as under:-

"13. Under these circumstance, the
question arises: whether the view taken by
the High Court could be supported by the
evidence on record or whether it is based
on no evidence at all ? From the narration
of the above facts, it would be difficult to
reach a conclusion that the finding reached
by the High Court is based on no evidence
at all. The necessary conclusion is that the
misconduct alleged against the respondent
stands proved. The question then is: what
would be the nature of punishment to be
imposed in the circumstances? Since the
respondent is a judicial officer and the
maintenance of discipline in the judicial
service is a paramount matter and since the
acceptability of the judgment depends upon
the credibility of the conduct, honesty,
integrity and character of the office and
since the confidence of the litigant public
gets affected or shaken by the lack of
integrity and character of the judicial
officer, we think that the imposition of
penalty of dismissal from service is well
justified.