Akshay Bipin vs Union Of India

C.HARI SHANKAR, JÂ Â

“…I will duly and faithfully and to the best of my ability, knowledge, and judgment perform the duties of my office without fear or favor,

affection or ill-will…†These words, infused with solemn intensity and pregnant with meaning, serve to guide every judicial officer, in our judicial

hierarchy, and permeate every living millisecond of the career of the officer, and the discharge, by her, or him, of the sacred duty so solemnly

entrusted to him by the Constitution, carrying with it the expectations and aspirations of the founding fathers of our land, and the fond hopes of the

voiceless millions of the country.Â

The task of the judicial officer is arduous, and unenviable. It is a constant struggle, the pressure of which the bystander watching from the

sidelines can never gauge, to ensure that, in dispensing justice, he does not end up dispensing with justice. No less perilously would the shaking hand

of the judge hold the justice-dispensing pen, than would the shaking hand of the surgeon wield the life-infusing scalpel. No less disastrous, either,

would the outcome be, if, at the critical moment of pronouncing the verdict, or making the crucial incision, the decision-making mind were to waver, or

the hand to tremble. Â

I am constrained to observe that, if proceedings such as these are allowed to be initiated and continued, we may as well do away with the

requirement of dispensing justice without fear or favour, affection or ill will. It is cardinal, to the dispassionate administration of justice, that the

judicial officer should be allowed to function without having, over his head as it were, the ominous shadow of the Damoclean sword. This case

presents a classic example of how a judicial officer has been hounded for passing orders which, as the writ petition points out, and as I would also be

highlighting in the course of this judgment, are eminently in accordance with the law laid down by this court, in its decisions, in case after case.

It is trite, in law, that a writ court should, ordinarily, not interdict disciplinary proceedings at an interlocutory stage. This, however, is not an

ordinary case. So misconceived, indeed, are the proceedings that have been initiated against the petitioner, that this court has no option but to nip

them in the bud, by exercising its extraordinary jurisdiction, vested by Article 226 of the Constitution of India.

To reonnoitre, now, the facts.

The petitioner was appointed as Presiding Officer of the Debt Recovery Tribunal (here in after referred to as “DRTâ€), Chandigarh, on 15th

December, 2014. His tenure, as Presiding Officer, came to an end on 24th May, 2018.

The present writ petition emanates from suo moto proceedings, initiated against the petitioner by the Chairman of the Debt Recovery Tribunal

(hereinafter referred to as “the DRATâ€), on the basis, allegedly, of a written complaint by an advocate.  The complaint, apparently, related to

two applications, filed by the Punjab National Bank (hereinafter referred to as “PNBâ€), against two firms, namely M/s Barkat Ram Jeevan

Kumar (hereinafter referred to as “Barkatâ€​) and M/s Jeevan Petroleum (hereinafter referred to as “Jeevanâ€​).

The case against Barkat arose out of a recovery suit, filed by the New Bank of India, against Barkat on 28th August, 1990 for recovery of₹

4,24,440/-. The suit was decreed by the Civil Court on 5th September, 1997. Based thereon, the Bank filed an execution application, before the

DRT, on 11th February, 2009. The Presenting Officer issued a recovery certificate, i.e. RC No. 266/2006, for a sum of₹ 1,854,831/-, with interest

at the rate of 16.5% per annum, with effect from 7th November, 2000, alongwith a sum of ₹ 45,078.22 and alongwith interest @ 18.5% per annum

with effect from 7th November, 2000, in respect of the Overdue Bill Purchased Facility.

The case against Jeevan arose out of a recovery suit, filed by the Bank on 22nd January, 2000, for recovery of ₹668,170/- which was decreed by

the Civil Court on 2nd June, 2008. Based on the said judgment and decree, Execution Application was filed, by the Bank, before the DRT on 13th

March, 2009, whereupon Recovery Certificate RC No. 118/2012 was issued, for recovery of₹ 23,02,215/- with interest at the rate of 15% per annum

with effect from 16th March, 2009, alongwith costs of ₹ 250/-.

During the pendency of these recovery proceedings, the third party objector tendered a compromise proposal to the PNB, in respect of both the

recovery certificates, , for a sum of ₹ 20 lakhs, for release of property and closure of the cases. This resulted in an affidavit, dated 15thJuly, 2016,

being filed by the PNB before the DRT, in which it was stated that the Bank had compromised the matter as per rules. It was prayed that the

compromise amount be allowed to be adjusted and the RC taken as satisfied. Â

Initially, the Recovery Officer ordered that the compromise be not given effect to, as the compromise amount, according to him, was too low.Â

However, as was admitted by the Bank, in its affidavit filed before the petitioner, “after the Bank attempted, twice, to auction the property, but was

unable to secure any bid, the Bank itself applied for permission to act upon the compromise, stating that it had been entered into according to banking

norms.â€​

In these circumstances, the petitioner, as PO of the DRT, confirmed the settlement/compromise and quashed the proceedings before the recovery

officer. Accordingly, vide separate order of the same date, the appeal of the debtors was also allowed. The affidavits, filed by the Bank, in the

present suo moto proceedings initiated by the Chairman, according to the petitioner, made it clear that the recovery policy of the Bank had been duly

followed in sanctioning the one time settlement (“OTSâ€) and that approval to the OTS had also been accorded by the Circle Officer of the Bank.

The affidavits also confirmed deposit, of the settlement amount of ₹ 20 lakhs, in terms of the settlement, and categorically deposed that it stood by the

OTS.  The petitioner impresses, in the writ petition, that the affidavits expressly record the satisfaction, of the Bank, to the closure of the RCs by

the petitioner. These facts are not disputed.

It appears that, thereafter, an advocate submitted a complaint, against the closure of the above proceedings by the petitioner, to the Chairman of

the DRAT, who took suo motu cognizance thereof. It is not necessary to refer to the specifics of the enquiry conducted by the Chairman. Suffice it to

note that, in the order, dated 6th February, 2017, the Chairman also observed that there was no reason to “smell a rat in the passing of the orders

dated 15.07.2017 by the Presiding Officer of the DRT-II, even though the order was set asideâ€. The comments in the said order, it was stated,

had to be taken by the Presiding Officer as a “piece of guidance also for future that he should not pass orders in hasteâ€​.

Less than two months prior to the expiry of his tenure, the petitioner was issued a charge-sheet dated 23rd March, 2018. The chargesheet

related to the order dated 15th July, 2016, passed by the petitioner, confirming the compromise of ₹ 20 lakhs entered into, between the PNB and the

two borrower firms, i.e. Barkat and Jeevan. It was observed, in the charge-sheet, that the orders had been passed by the petitioner in a disposed of

OA 117/2009 which had the effect of withdrawal of the two RCs. The total value of the two RCs, it was noted was₹ 2,37,55,771/-, which was

substantially higher than the compromise amount of ₹ 20 lakhs.  The Statement of Imputations attached to the charge-sheet also noted that the

payment of the loan, taken by the two borrowers from the Bank, was secured by way of mortgage of a piece of land, with a building constructed

thereon, and that the mortgaged property was to be auctioned and the reserve price fixed at ₹ 3.34 crores. It was further noted that proclamation of

sale had been issued on 24th July, 2015, by the Recovery Officer for the said RCs, requiring deposit of the earnest money of ₹ 85 lakhs, by the

intending bidder. As such, the charge-sheet alleged that the orders, withdrawing the Recovery Certificates, were passed by the petitioner, on 15th

July, 2016, unauthorizedly, without legal authority or justification. This, it was alleged, amounted to exceeding, by the petitioner, of his “vested

judicial powers, showing his incapacity to function as a Presiding Officer in a befitting mannerâ€​ and that he was “guilty of misbehaviourâ€​.

It is necessary, here, to reproduce certain passages of the affidavits, submitted by the Bank, at the time of applying for closure of the proceedings

on the ground that they had been compromised, as also before the Chairman of the DRAT, in the suo motu proceedings initiated by him, thus:

 “14. I say that the third party objector tendered compromise proposal in R.C. No.118/2012 and R.C.No. 266/2006 of ₹20 lakhs for release of the

aforesaid property and closure of the aforesaid cases.

I say that the relevant point of time, Mr. S.L. Agarwal, Assistant General Manager (Retd.) was the branch incumbent and he was competent to

take a decision on the compromise proposal, which was before the committee consisting of Mr. S.L. Agarwal, Assistant General Manager (Retd.),

Mr. Nika Ram, Senior Manager (Loan Incharge) (Retd.) and Mr. Manmohan Singh, Chief Manager (second man of branch) (Retd.).

I say that considering the insurmountable difficulty in auctioning the aforesaid property for recovery of dues and the loans having been covered

with appropriate provisioning, it was felt appropriate to accept the compromise proposal and close the recovery cases in R.C.No. 118/2012 and

R.C.No. 266/2006. Accordingly, the bank sanctioned the OTS dated 25.11.2014 for₹ 20 lakhs which amount was to be deposited by Mr. Balkar

Singh. Mr. Balkar Singh deposited the settlement amount within the prescribed period.Â

I say that the bankâ€s recovery policy has been duly followed in sanctioning the OTS. The Circle Office of the bank, also accorded its approval

to the OTS dated 25.11.2014.

I say that while arriving at the aforesaid settlement, no portion of the principal amount has been waived. The entire principal amount disbursed

by New Bank of India under the loan facilities stands recovered. The bank, however, sacrificed interest as awarded under the decrees/recovery

certificates as it felt that the aforesaid property will not ever be successfully auctioned.

I say that the OTS dated 25.11.2014 is valid and in accordance with law. The bank stands by the OTS dated 25.11.2014. Â

I say that the learned Tribunal has rightly closed recovery cases in R.C.No.118/2012 and 266/2006 respectively. Â

I say that the affidavit dated 07.12.2016 of Mr. Balbir Singh, Senior Manager contains correct depositions, which I reiterate and reaffirm to be

true.â€​

The petitioner responded to the charge-sheet, vide communication dated 13th April, 2018, completely denying the charges, framed against him.

At this stage, reference may be made to Sections 19(22), 26 and 33 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993

(hereinafter referred to as the “Actâ€​), thus:

“19. Application to the Tribunal. â€

 (22) The Presiding Officer shall issue a certificate under his signature on the basis of the order of the Tribunal to the Recovery Officer for recovery

of the amount of debt specified in the certificate.â€​

“26.

 Validity of certificate an amendment thereof. â€

(1) It shall not be open to the defendant to dispute before the Recovery Officer the correctness of the amount specified in the certificate, and no

objection to the certificate on any other ground shall also be entertained by the Recovery Officer.

(2) Notwithstanding the issue of a certificate to a Recovery Officer, the Presiding Officer shall have power to withdraw the certificate or correct any

clerical or arithmetical mistake in the certificate by sending intimation to the Recovery Officer.

(3) The Presiding Officer shall intimate to the Recovery Officer any order withdrawing or canceling a certificate or any correction made by him under

sub-section (2).â€​

 “33. Protection of action taken in good faith No suit, prosecution or other legal proceeding shall lie against the Central Government or against

11[the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal] or against the Recovery Officer for anything which is in good faith

done or intended to be done in pursuance of this Act or any rule or order made thereunder.â€​

A reading of the above provisions makes it apparent that Section 19(22) of the Act empowers the Presenting Officer of the DRT to issue a

certificate, on the basis of the order of the DRT, to the Recovery Officer, for recovery of the amount of debt specified in the certificate. At the

same time, Section 26(2) empowers the Presenting Officer to withdraw the said certificate, by sending intimation to the Recovery Officer. Section

33 protects actions taken by the Presenting Officer, or the Chairperson of the DRT/DRAT or the Recovery Officer, for anything done in good faith,

from suits, prosecutions, or other legal proceedings.  It can hardly be disputed that the present disciplinary proceedings, which the petitioner is

facing, would also be eligible to be classified as “other legal proceedingsâ€​.Â

As this apparent from the passages, in the affidavits tendered by the Bank, it was acknowledged, therein, by the Bank, that (i) “the third party

objector had tendered the compromise proposal, in the two RCs of Rs.20 lakhs, for release of the property and closure of the casesâ€, (ii)

“considering the insurmountable difficulty in auctioning the aforesaid property for recovery of the dues and loansâ€, it was felt appropriate to

accept the compromise proposal, and close the recovery cases in the two RCs, (iii) accordingly, the Bank sanctioned the OTS dated 25th November,

2014 for ₹ 20 lakhs, which amount was deposited by Mr. Balkar Singh, within the prescribed period, (iv)Â in sanctioning the OTS, the Recovery

policy of the Bank had been duly followed and approval, of the Circle Officer of the Bank also accorded on 25th November, 2014, (v)Â the OTS,

dated 25th November, 2014, was valid and in accordance with law, and the Bank stood by it and (vi) the DRT had rightly closed the two RCs.

The petitioner has, in these circumstances, moved this court, for interdicting the continuance of the disciplinary proceedings against him. It is the

contention of the petitioner that, where a compromise is entered into, between litigating parties, it is a contract between them, and a court has only to

see that the same is lawful.   Reliance has been placed, by the petitioner, in this context, on a judgment dated 19th April, 2010, of this court in

Satish Chander Gupta v. S.B.I.(WP(C) 2588/2010). To the same effect is para 9 of a recent decision of this court in Smt. Harpreet Kaur & Anr. v.

M/s Fullerton India Creditcompany Ltd., 2018 (249) DLT 283. The said passages may profitably be reproduced, thus:

 “9. Even otherwise, as observed by a Division Bench of this Court in the said order dated 19.4.2010, extracted hereinabove, the parties to a

proceedings are at a liberty; at any stage thereof, to arrive at an amicable settlement in relation to the subject matter of the dispute, and it does not lie

in the mouth of the judicial authority to obstruct or impede the amicable settlement on a ground which is not sustainable in law. The learned DRAT,

as observed in the said order dated 19.4.2010, is not some kind of Ombudsman/Auditor of the Bank; to scrutinize the settlement arrived at between

the bank and the borrower, as it is not within the scope and ambit of its jurisdiction or function. It is reiterated that the learned DRAT cannot

arrogate to itself the power to determine the value at which the Bank should settle its dues with the borrower, especially when it does not any involve

public money.â€​

The petitioner also draws attention to the fact that the order, dated 15th July, 2016 had been passed by him, based on an affidavit, of the same

date, filed by the Bank, specifically averring that the RCs be taken as satisfied.

The writ petition further points out that there is no allegation of want of good faith, moral turpitude, or corruption, against the petitioner.Â

By way of a residuary submission, the writ petition avers that the proceedings against the petitioner, having been founded on the report/order dated

6th February, 2017 of the Chairman, DRAT, the procedure prescribed in Section 4 of the Act was required to be followed which, too, was not

done. However, in the light of the view which I am taking, it may not be necessary to enter into this aspect of the matter.Â

The counter-affidavit filed by the respondent in response to the writ petition does not contain any substantial rebuttal to the averments in the writ

petition, except for reiterating the trite position that courts ordinarily ought not to interdict disciplinary proceedings midway. Mr.Soni, learned counsel

appearing for the respondent, too, limited his submission to emphasising this legal position and relied, in this context, on the well known judgment of the

Supreme Court in UOI v. Kunisetty Satyanarayana, (2006) 12 SCC 28.

There can be no quarrel with the proposition that disciplinary proceedings, once commenced, ought to be allowed to proceed to their logical

conclusion, at the hands of the disciplinary authority and, if so provided in law, further at the hands of the appellate and revisional authorities. The

Supreme Court has, on numerous occasions, highlighted the indisability of courts interfering with disciplinary proceedings midway. As such, there

can be no cavil with the proposition mooted by Mr. Soni, or the law relied upon, by him, in that regard.

At the same time, it is equally trite that, if the allegations against the officer concerned, even at their face value, do not disclose commission of any

misconduct, it is the solemn duty of every constitutional court to step in and ensure that the officer is not unnecessarily harassed and subjected to the

ignominy of a disciplinary enquiry, which has pernicious ramifications, financial, personal and social.

The boundaries of permissible disciplinary action, against officers exercising judicial or quasi judicial powers, have been examined, and delineated,

in a number of decisions. Â

In Zunjarrao Bhikaji Nagarkar v. U.O.I., (1999) 7 SCC 409, the Supreme Court, dealing with the said aspect observed as follows :

“40. When we talk of negligence in a quasi-judicial adjudication, it is not negligence perceived as carelessness, inadvertence or omissionbut as

culpable negligence. This is how this Court in State of Punjab v. Ex-Constable Ram Singh,

(1992) 4 SCC 54 interpreted “misconduct†not coming within the purview of mere error in judgment, carelessness or negligence in performance

of duty. In the case of K.K. Dhawan, (1993) 2 SCC 56 the allegation was of conferring undue favour upon the assessees. It was not a case of

negligence as such. In Upendra Singh case, (1994) 3 SCC 357 the charge was that he gave illegal and improper directions to the assessing officer in

order to unduly favour the assessee. The case of K.S. Swaminathan, (1996) 11 SCC 498 was not where the respondent was acting in any quasi-

judicial capacity. This Court said that at the stage of framing of the charge the statement of facts and the charge-sheet supplied are required to be

looked into by the court to see whether they support the charge of the alleged misconduct. In M.S. Bindra case, (1998) 7 SCC 310 where the

appellant was compulsorily retired this Court said that judicial scrutiny of an order imposing premature compulsory retirement is permissible if the

order is arbitrary or mala fide or based on no evidence. Again in the case of Madan Mohan Choudhary, (1999) 3 SCC 396 which was also a case of

compulsory retirement this Court said that there should exist material on record to reasonably form an opinion that compulsory retirement of the

officer was in public interest. In K.N. Ramamurthy case, (1997) 7 SCC 101 it was certainly a case of culpable negligence. One of the charges was

that the officer had failed to safeguard government revenue. In Hindustan Steel Ltd. Case (1969) 2 SCC 627 it was said that where proceedings are

quasi-judicial penalty will not ordinarily be imposed unless the party charged had acted deliberately in defiance of law or was guilty of conduct

contumacious or dishonest or acted in conscious disregard of its obligation. This Court has said that the penalty will not also be imposed merely

because it is lawful so to do. In the present case, it is not that the appellant did not impose penalty because of any negligence on his part but he said it

was not a case of imposition of penalty. We are, however, of the view that in a case like this which was being adjudicated upon by the appellant

imposition of penalty was imperative. But then, there is nothing wrong or improper on the part of the appellant to form an opinion that imposition of

penalty was not mandatory. We have noticed that the Patna High Court while interpreting Section 325 IPC held that imposition of penalty was not

mandatory which again we have said is not a correct view to take. A wrong interpretation of law cannot be a ground for misconduct. Of course it is a

different matter altogether if it is deliberate and actuated by mala fides.

When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the

assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The

record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that

the appellant showed “favour†to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can

be corrected in appeal. That cannot always form a basis for initiating disciplinary proceedings against an officer while he is acting as a quasi-judicial

authority. It must be kept in mind that being a quasi-judicial authority, he is always subject to judicial supervision in appeal.

Initiation of disciplinary proceedings against an officer cannot take place on information which is vague or indefinite. Suspicion has no role to play

in such matter. There must exist reasonable basis for the disciplinary authority to proceed against the delinquent officer. Merely because penalty was

not imposed and the Board in the exercise of its power directed filing of appeal against that order in the Appellate Tribunal could not be enough to

proceed against the appellant. There is no other instance to show that in similar case the appellant invariably imposed penalty.

If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like

the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on

the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-

judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the

quasi-judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus

impinge upon the confidence and independent functioning of a quasijudicial authority. The entire system of administrative adjudication whereunder

quasi-judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in

performing their functions without fear or favour because of the constant threat of disciplinary proceedings.â€​ (Emphasis supplied)

After Nagarkar, a similar controversy arose before the Supreme Court in the case of U.O.I. v. Duli Chand, (2006) 5 SCC 680, which overruled

Nagarkar, by placing reliance on U.O.I. v. K. K. Dhawan, (1993) 2 SCC 56. Paras 5 and 6 of the report, which relied on K. K. Dhawan (supra),

held thus:Â

“5. The law on the subject was considered in extenso in the three-Judge Bench decision of Union of India v. K.K. Dhawan, (1993) 2 SCC 56

wherein it was noted that the view that no disciplinary action could be initiated against an officer in respect of judicial or quasi-judicial functions was

wrong. It was further said that the officer who exercises judicial or quasi-judicial powers acting negligently or recklessly could be proceeded against

by way of disciplinary action. The Court listed six instances when such action could be taken: (SCC p. 67, para 28) “(i) where the officer had acted

in a manner as would reflect on his reputation for 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 greatâ€​.â€​

The Court, however, made it clear that ultimately the matter would have to depend upon the facts of a particular case. The present case would fall

squarely within the fourth instance listed above.â€​

(Emphasis supplied)

Subsequently, however, another bench, of three Honâ€ble judges, reiterated Nagarkar (supra), in Ramesh Chander Singh v. High Court of

Allahabad, (2007) 4 SCC 247. The following passages, from the said judgment, crystallize the legal position:

“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 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 the

TADA Act or the 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.

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, the High Court must take extra care and caution.

In Ishwar Chand Jain v. High Court of P&H, (1988) 3 SCC 370,this Court observed that while exercising control over subordinate judiciary under

Article 235 of the Constitution, the High Court is under a constitutional obligation to guide and protect subordinate judicial officers. An honest and strict

judicial officer is likely to have adversaries. If complaints are entertained in trifling matters and if the High Court encourages anonymous complaints,

no judicial officer would feel secure and it would be difficult for him to discharge his duties in an honest and independent manner. It is imperative that

the High Court should take steps to protect honest judicial officers by ignoring illconceived or motivated complaints made by unscrupulous lawyers and

litigants.

In K.P. Tiwari v. State of M.P., 1994 Supp (1) SCC 540 where the High Court reversed the order passed by the lower court making remarks

about interestedness and motive of the lower court in passing the unmerited order, this Court observed that one of the functions of the higher court is

either to modify or set aside erroneous orders passed by the lower courts. Our legal system acknowledges fallibility of judges. It has to be kept in mind

that a subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressureâ€" contestants and lawyers breathing

down his neck. He does not enjoy the detached atmosphere of the higher court. Every error, however gross it may be, should not be attributed to

improper motives. The Judges of the High Court have a responsibility to ensure judicial discipline and respect for the judiciary from all concerned. No

greater damage can be done to the administration of justice and to the confidence of the people in the judiciary if the higher courts express lack of

faith in the subordinate judiciary for some reason or the other. That amounts to destruction of judiciary from within.

In Kashi Nath Roy v. State of Bihar, (1996) 4 SCC 539, this Court observed under a similar circumstance that in our system appellate and

revisional courts have been set up with the presupposition that the lower courts in some measure of cases can go wrong in decision-making in law and

in fact. The higher courts have been established to correct errors. In cases where intolerable error is pointed out, it is functionally required to correct

the error in an appropriate case and in a manner befitting maintaining dignity of the court and independence of the judiciary. The higher court should

convey its message in the judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellowed but clear

and result oriented and rarely a rebuke.

In a series of other cases also, this Court disfavoured the practice of passing strictures or orders against the subordinate officers. (See Braj

Kishore Thakur v. Union of India, (1997) 4 SCC 65; Alok Kumar Roy v. Dr. S.N. Sarma, AIR 1968 SC 453.)

In Zunjarrao Bhikaji Nagarkar v. Union of India, (1999) 7 SCC 409 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 Article 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.â€​

(Emphasis supplied)

It is relevant to note that, though it did not specifically deal with the case of an allegedly delinquent quasi-judicial or judicial officer, another Bench

of the Supreme Court, albeit of two Honâ€ble judges, categorically approved Nagarkar (supra), in Inspector Prem Chand v. Govt of N.C.T. of Delhi,

(2007) 4 SCC 566.

All these decisions were noted and considered, by a Division Bench of this Court, in U.O.I. v. S. Rajguru, MANU/DE/1941/2014. The Articles

of Charge, against the allegedly delinquent respondent in that case, read thus:

ARTICLE-I

Shri S. Rajguru, while functioning as Commissioner of Income Tax (Appeals)-II, Kochi, committed irregularity in the appeal order passed by him on

01.09.2005 in the case of M/s. Bhageeratha Engineering Ltd. (Block Period 01.04.1996 to 09.10.2002) by deleting additions which had been made by

the assessing officer without proper verification of the facts and examination of records.

By his aforesaid act, Shri S. Rajguru failed to maintain devotion to duty and thereby contravened the provisions of Rule 3(1)(ii) of the CSS (Conduct)

Rules, 1964.

ARTICLE-II

Shri S. Rajguru, while functioning as Commissioner of Income Tax (Appeals)-II, Kochi committed irregularity in the appeal order passed by him on

25.08.2005 in the case of M/s. Skyline Builders (AY 2002-03) by allowing the assessee's appeal in disregard of the provisions of section 145(3) of the

I.T. Act, 1961.

By his aforesaid act, Shri S. Rajguru failed to maintain devotion to duty and thereby contravened the provisions of Rule 3(1)(ii) of the CCS (Conduct)

Rules, 1964.

ARTICLE-III

Shri S. Rajguru, while functioning as Commissioner of Income Tax (Appeals)-II, Kochi committed irregularity in the appeal order passed by him on

23.08.2005 in the case of Shri M.M. Rasheed (Block Period- 01.04.1989 to 17.09.1998) by deleting additions which had been made by the assessing

officer without proper verification of the facts and examination of records.

By his aforesaid act, Shri S. Rajguru failed to maintain devotion to duty and thereby contravened the provisions of Rule 3(1)(ii) of the CCS (Conduct)

Rules, 1964.

ARTICLE-IV

Shri S. Rajguru, while functioning as Commissioner of Income Tax (Appeals)-II, Kochi committed irregularity in the appeal order passed by him on

01.09.2005 in the case of Shri Jose Cyriac (Block Period- 01.04.1989 to 23.09.1998) by allowing the assessee's appeal in disregard of the directions

given by the Income Tax Appellate Tribunal (ITAT) in its order dtd. 30.07.2003.

By his aforesaid act, Shri S. Rajguru failed to maintain devotion to duty and thereby contravened the provisions of Rule 3(1)(ii) of the CCS (Conduct)

Rules, 1964.

(Emphasis supplied)

This Court, having noticed the above, framed the question arising before it, for its consideration, as “whether in the facts of the present case,

the Tribunal had erred in holding that the Articles of Charge were not sustainable since they were based on quasi-judicial orders passed by the

respondent in his capacity as CIT (Appeals)â€​.

Holding, ultimately, in favour of the respondent-officer before it, this Court proceeded on the following reasoning:

“25.It can be seen from the above that the gravamen of the charges levelled against the respondent are not based on his conduct. Although it has

been alleged that certain decisions rendered indicate a lack of devotion to duty, but a bare perusal of the statement of imputation and the Articles of

Charge indicate that the gravamen of the charges is only that the respondent hadrendered decisions which, according to the Revenue, wereerroneous.

This is certainly not the basis on which theproceedings for misconduct can be commenced against a officerwho is charged with a quasi-judicial

function. In K.K. Dhawan's case (supra)there was a specific allegation that the Officer had completed the assessment ""apparently with a view to

confer to undue favour upon the assessee's concern"". The test laid down by the Supreme Court in that case must be read in the context of the facts

placed before the Court. Although, the Court had held that where an officer had acted in a manner which would reflect upon his reputation for

integrity or good faith or devotion to duty, a disciplinary action could be initiated. However, an act of an Officer which would reflect on his devotion to

duty must be read in the context of his conduct and not the correctness of the decisions rendered by him in a multi-tiered appellate structure.

The conduct of an officer must be alleged to be one, which reflects recklessness or complete disregard for the function that he is performing. Mere

erroneous decisions on account of a mistake of law or facts, cannot be the basis of commencing proceedings for misconduct.

The decision in the case of K.K. Dhawan (supra)cannot be read to mean that misconduct proceedings can be commenced, alleging lack of

devotion of duty, in cases where the decisions rendered by quasi-judicial authority are alleged to be erroneous. There has to be something more than

mere allegationof erroneous decisions to charge an employee for misconduct;the conduct of an employee must be alleged to be reckless or formotives.

In absence of such imputations, a charge made solely onthe basis of a decision rendered by a quasi-judicial authoritywould not be sustainable.

The decision in the case of Nagarkar (supra) and in K.K. Dhawan (supra)are not at variance in the above respect and a wrong or erroneous

exercise of jurisdiction by a quasi-judicial authority or a mistake of law or an error in facts or law, cannot form the basis of initiating disciplinary

proceedings.

The petitioner's contention that the tribunal erred in relying on the statement of law in Nagarkar (supra) as the law stated by the Supreme Court in

that case is no longer good law, also cannot be accepted. In the case of Ramesh Chander Singh (supra) a Bench of three Judges of Supreme Court

referred to the decision in the case of Nagarkar (supra) and held as under:-

17. In Zunjarrao Bhikaji Nagarkar v. Union of India (1999) 7 SCC 409 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 Article 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.

It is relevant to note that the decision in Ramesh Chand Singh (supra) was delivered by a bench of three judges on 26.02.2007, is subsequent to the

decision rendered by the Supreme Court in Duli Chand (supra).

It is also necessary to bear in mind that a CIT (Appeals), essentially has to decide the cases based on the contentions canvassed before him.

Proceedings before a CIT (Appeals) are adversarial proceedings and are bound to be decided in favour of one or the other party. It is necessary to

ensure that a CIT (Appeals) or any other quasi-judicial authority is not put under any pressure in discharging his functions. The idea that the

Government could commence disciplinary proceedings if, the decisions were rendered against the department, would be pernicious to the

effectiveness of the role that is required to be performed by the CIT (Appeals).

We concur with the reasoning of the Tribunal that a quasijudicial authority is to act without fear and levelling charges which are based solely on

the decisions rendered by the quasijudicial authority would certainly instill fear in the minds of the officers and, thus, cannot be permitted.â€​

(Emphasis supplied)

Though, thus, the swinging of the legal pendulum, between the Nagarkar and Duli Chand extremes, may, with the development of the law

thereafter, be taken to have been stilled, I am additionally persuaded to rely on Ramesh Chander Singh (supra), in preference to other decisions cited

hereinabove, for the reason that, unlike the situation which obtained in Duli Chand (supra), or even in Nagarkar (supra) and Rajguru (supra), the

present case deals, not with an executive officer exercising quasi-judicial functions, such as a Commissioner of Income Tax or a Commissioner of

Central Excise, but with a judicial officer, administering the law in a Tribunal which has all the trappings of a Court. The distinction is subtle, but

unmistakable. The pressures which weigh on a judicial officer, vested with the duty of dispensing justice, whether it be in a “Courtâ€, understood in

the classical sense, or in a Tribunal, which functions, to all intents and purposes, in a manner akin to a Court, are qualitatively different from those

which weigh on an executive Officer, discharging statutorily conferred quasi-judicial functions. A court is a court, and a Commissionerâ€s office is a

Commissionerâ€s office, and, in the case of a dispute such as the present, the distinction between the two has necessarily to inform the decision of the

court, if one is not shut oneâ€​s eyes to reality.

Be that as it may, the extant legal position, regarding subjection of an officer, exercising judicial or quasi judicial powers, to disciplinary

proceedings, in relation to orders passed in the exercise of such powers, is that, in the absence of any element of corrupt motives or ulterior motives,

disciplinary action against such officers cannot sustain. This is also necessary in order to ensure that judicial officers are permitted to function

without, as they are required, fear or favour, affection or ill will, which is their highest constitutional credo.

There is no allegation, against the petitioner, of corrupt motives, ulterior considerations, or mala fides. The error, on the part of the petitioner, as

the respondent perceives the petitioner to have committed, is only in allowing the matter to be compromised, between the Bank and the debtors, at a

figure which was much less that the actual debt which, it is sought to be alleged, might have been liquidated, had the compromise not taken place. In

other words, it is the commercial expediency of the decision of the petitioner, which is being sought to be called into question, in the disciplinary

proceedings pending against him.To borrow the words used in the charge-sheet (whatever they may mean), what was alleged against the petitioner

was “incapacity to function as a Presiding Officer in a befitting mannerâ€. In what more “befitting†manner, placed in the circumstances in

which he was, the petitioner could have acted, the charge-sheet does not, significantly, condescend to disclose.Â

De hors the correctness, judicially examined, of the decision of the petitioner to compromise the matter by allowing the joint application filed by the

Bank and the debtors, the said decision, not being alleged to be tainted by any ulterior motives, could not have legitimately constituted the basis for

initiating disciplinary proceedings against the petitioner. Even of the sole ground, therefore, the proceedings would be liable to be quashed in their

entirety.

On merits, too, however, the proceedings against the petitioner are, on the face of it, thoroughly misconceived. It is clear, from the authorities

relied upon by the petitioner, of this court, which the petitioner had, when faced with the application of the Bank, and the proposal for compromise,

signed by all parties, no option but to settle the disputes in terms thereof. It was not open for the petitioner to go behind the said compromise and

start dissecting the compromise by examining its commercial expediency or otherwise. Any such attempt, on the part of the petitioner, would have

amounted, in fact, to exceeding his authority, and the jurisdiction vested in him by law.

It is ironical, therefore, that, for proceeding in the manner sanctified by authorities of this court, the petitioner has been visited with the presently

impugned disciplinary proceedings, which deserve, therefore, to be eviscerated even at this juncture, without subjecting the petitioner to the ignominy

of having to further negotiate the distasteful course thereof.  Â

I may note, in passing, that the petitioner is also protected by the provisions of Section 33 of the Act as there is no allegation that the action of the

petitioner was not bonafide.

Conclusion

In view of the above discussion, the impugned memorandum/chargesheet dated 28th March, 2018, issued to the petitioner, as also all proceedings

that follow thereupon, are held to be unsustainable on facts as well as in law and, consequently, quashed and set aside.

The writ petition is, accordingly, allowed.

Though, in the facts of the case, costs may have been warranted, in view of the eminently reasonable stand adopted by Mr. Soni, I refrain from

imposing any.

All pending applications stand disposed of accordingly.Â