J. Lakra vs State of M.P.

T.P. Sharma, J.—By this writ petition filed under Article 226/227 of the Constitution of India, the petitioner seeks quashment of order of his removal from service dated 25-6-98 passed by respondent No. 1 and prays for his reinstatement with consequential pecuniary benefits. The petitioner submits that he is member of Scheduled Tribe and was appointed as Civil Judge Class-II vide order dated 14-6-90 by respondent No. 1. He was discharging his duty with utmost honesty, devotion and sincerity till the date of his removal/dismissal. His service career was meritorious and nothing adverse was communicated or conveyed to him. He was posted as Civil Judge Class-II and Judicial Magistrate First Class at Dantewada.

In the course of judicial proceedings before the petitioner, one Smt. Chandrika Nagwanshi, W/o Bali Nagwanshi alongwith her daughter Kum. Nisha Nagwanshi filed an application u/s 125 of the Code of Criminal Procedure, 1973, for their maintenance against Bali Nagwanshi which was registered as Misc. Criminal Case No. 8/95. Notices were issued to Bali Nagwanshi on 17-1-95. On 6-3-95 Smt. Chandrika Nagwanshi moved an application in the said proceeding for issuance of prohibitory order restraining payment of Rs. 34 lakhs by the Divisional Forest Officer/Additional Collector, Dantewada to Bali Nagwanshi on ground that Bali Nagwanshi was avoiding service of notice and that their condition was extremely deplorable. The petitioner thereon passed order stopping payment of Rs. 34 lakhs by the Divisional Forest Officer/Additional Collector, Dantewada to Bali Nagwanshi. Bali Nagwanshi thereafter, immediately contacted the applicant i.e. his wife, entered into compromise with her and his daughter, and brought them home on 4-4-95. Consequently, Smt. Chandrika Nagwanshi filed application before the petitioner that the matter has been compromised and she did not want to prosecute the application. At the instance of applicant Smt. Chandrika Nagwanshi the proceeding was dropped. On 4-4-95 Bali Nagwanshi made a complaint to respondent No. 2 i.e. the High Court of Madhya Pradesh alleging that the Additional Collector, Dantewada and the petitioner herein are residents of same village and friends and that with a view to elicit money from him, they have played fraud on his wife to get such application filed and thus, the petitioner has passed prohibitory order and as such, his wife on her own never wanted to file such application.

The District & Sessions Judge, Bastar conducted preliminary enquiry on the complaint and vide report dated 23-8-95, found substance against the petitioner. On the basis of preliminary enquiry, respondent No. 2 initiated disciplinary proceeding against the petitioner and charges were served upon him vide notice dated 5-3-97. The petitioner denied the allegations by filing reply dated 5-6-97. Mr. P.C. Mishra, the then District Judge (Vigilance), was appointed as Enquiry Officer by respondent No. 2. The then Chief Judicial Magistrate, Kanker was made Presenting Officer and the then Senior District Judge Mr. R.K. Shrivastava was witness. During course of enquiry, application for examination of Smt. Chandrika Nagwanshi and the Additional Collector, Dantewada Mr. Sarthi, filed by the petitioner was dismissed by the Enquiry Officer. It is alleged that relying upon a hearsay witness of Bali Nagwanshi, the Enquiry Officer has submitted its report against the petitioner.

On the basis of report of the Enquiry Officer, respondent No. 2 recommended dismissal of the petitioner from service to respondent No. 1 and vide order impugned, respondent No. 1 has dismissed the petitioner. The petitioner filed representation against his dismissal to respondent No. 2 on 24-6-98 but same has been dismissed without assigning cause by respondent No. 2 vide order dated 21-8-98. It is alleged that the Enquiry Officer has not conducted enquiry against the petitioner in accordance with the Madhya Pradesh Civil Services (Conduct) Rules, 1965 and complete opportunity of hearing has not been provided to the petitioner. As per the notification dated 12-11-97 issued by respondent No. 1 member of Scheduled Caste, Scheduled Tribe and Backward Classes should not be ordinarily punished without first reprimanding them. In the light of aforesaid notification, the respondents were under obligation to give at least one chance to the petitioner to correct himself.

In the counter affidavit, respondent No. 2 has denied all adverse allegations and has pleaded that complete opportunity of hearing has been provided to the petitioner; on the basis of complaint made by Bali Nagwanshi, preliminary enquiry was conducted by the District & Sessions Judge; departmental proceeding has been initiated against the petitioner in accordance with the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966; and after providing opportunity of hearing to the petitioner, the Enquiry Officer has given its report. After due consideration of the report submitted by the Enquiry Officer, the disciplinary authority has accepted the report and has issued show cause notice to the petitioner for imposing penalty on him. After affording hearing to the petitioner, the disciplinary authority i.e. respondent No. 2 recommended imposition of major penalty of dismissal from service to respondent No. 1 who has passed the order impugned.

Respondent No. 3 has filed preliminary objection that present proceeding is not exclusively relating to the State of Chhattisgarh, therefore, the petition is not maintainable before the High Court of Chhattisgarh in light of Section 83(1) of the Madhya Pradesh Reorganization Act 2000.

The State of Chhattisgarh has also filed its return and has pleaded that although the petitioner has not made the State of Chhattisgarh as party, but as per claim of the petitioner, the petitioner has claimed relief against respondents No. 1 & 2 i.e. the State of Madhya Pradesh & the High Court of Madhya Pradesh, not against the State of Chhattisgarh. Therefore, in the light of preliminary objection filed on behalf of respondent No. 3, the High Court of Chhattisgarh, the petition is liable to be dismissed.

While replying to preliminary objection filed on behalf of respondent No. 3, the petitioner has specifically submitted that at the time of such enquiry the petitioner was posted at Dantewada, he has been dismissed from service while he was posted at Dantewada, he is resident of the State of Chhattisgarh and, therefore, the proceeding is exclusively related to the territory of Chhattisgarh. This case has been received on transfer from the High Court of Madhya Pradesh by the High Court of Chhattisgarh in accordance with Section 83(1) of the Madhya Pradesh Reorganization Act, 2000 and this Court is having jurisdiction to decide the matter in accordance with Section 83 of the Madhya Pradesh Reorganization Act, 2000.

It is worth mentioning that the State of Madhya Pradesh and the High Court of Madhya Pradesh have submitted to the jurisdiction of this Court without raising any objection. Also the case has been received on transfer from the High Court of Madhya Pradesh, which according to respondent No. 3, is alleged to be Court of competent jurisdiction.

I have heard learned counsel for the parties, perused the order impugned, copies of order sheets relating to Misc. Criminal Case No. 8/95 tried and decided by the petitioner, copy of the complaint made by Bali Nagwanshi, copy of initial appointment order of the petitioner, copies of disciplinary proceeding and copies of other documents.

Mr. P.S. Koshy, learned counsel for the petitioner, vehemently argued that the petitioner was working as judicial officer and has passed order in a judicial proceeding which was subject matter of appeal and revision. Therefore, departmental proceeding against a judicial proceeding which was subject matter of appeal and revision was not competent and by initiating disciplinary proceeding, the respondents have committed illegality. The respondents have not provided complete opportunity of hearing to the petitioner. The respondents were under obligation to prove specific misconduct of the petitioner. Committing mistake of fact or mistake of law by itself cannot be the subject matter of departmental proceeding unless it is committed for extraneous consideration or with ulterior motive. The Enquiry Officer has specifically held in his report dated 8-10-97 that the order passed by the petitioner was without jurisdiction and the petitioner has passed order against Bali Nagwanshi intentionally to harass him with ulterior motive, but has not held that by corrupt means or with improper motive with a view to extract money from Bali Nagwanshi, the petitioner has passed such prohibitory order. Order passed without jurisdiction or illegally by itself cannot be ground for departmental action against judicial officers. Mr. P.S. Koshy further argued that although alternative remedy of appeal under Rule 23 of the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (for short ''the Rules, 1966'') is available to the petitioner, but on the ground that the order impugned is illegal and non est, instant petition under Article 226 of the Constitution of India is maintainable before the High Court.

Mr. P.S. Koshy placed reliance in the matter of Zunjarrao Bhikaji Nagarkar Vs. U.O.I. and Others, in which the Supreme Court has held that under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 mere mistake of law or wrong interpretation of law cannot be the basis for initiating proceedings against quasi judicial authority. Mr. P.S. Koshy further placed reliance in the matter of Ramesh Chander Singh Vs. High Court of Allahabad and Another, , in which the Supreme Court has disapproved initiation of disciplinary proceedings against officers of subordinate judiciary on mere ground that orders passed by them are wrong when appellate and revisional courts have been established and given power to set aside such order. Mr. P.S. Koshy also placed reliance in the matter of Union of India (UOI) and Others Vs. Prakash Kumar Tandon, in which the Supreme Court has held that non-examination of important witness vitiates the departmental proceeding, an enquiry officer is a quasi-judicial authority and should perform his functions fairly and reasonably. Mr. P.S. Koshy relied upon the matter of G. Vallikumari Vs. Andhra Education Society and Others, , in which the Supreme Court has held that removal of employee without recording reasons and by simply referring to findings of enquiry officer does not satisfy the test of natural justice and proceeding must be vitiated due to violation of the statutory rules and the principles of natural justice and therefore, not sustainable. Mr. P.S. Koshy further relied upon the matter of Divl. Forest Officer, Kothagudem and Others Vs. Madhusudhan Rao, in which the Supreme Court has held that in case of appeal or revision against the order passed by the disciplinary authority, appellate/revisional authorities are under obligation to indicate some reason even while conforming an order passed by the lower forum relating to propriety of award of punishment instead of simply rejecting appeal or revision on the ground that the lower forum has not committed any illegality.

Miss Sharmila Singhai, learned counsel for respondent No. 2, vehemently opposed the petition and submitted that complete opportunity has been provided to the petitioner in the departmental proceeding, after receiving complaint of grave misconduct committed by the petitioner, preliminary enquiry was conducted against the petitioner at the instance of respondent No. 2 and after receiving report against the petitioner, departmental enquiry has been initiated against him. The Enquiry Officer after complying with the procedure prescribed in the Rules, 1966, reached to the conclusion that the petitioner has committed grave misconduct. The disciplinary authority after considering the report of the Enquiry Officer has accepted the report and has issued show cause notice to the petitioner relating to imposition of major penalty, and after providing opportunity of hearing to the petitioner, respondent No. 2 has recommended for imposition of major penalty upon the petitioner to respondent No. 1. On the basis of recommendation of respondent No. 2, respondent No. 1 has imposed major penalty upon the petitioner. Exhaustive remedy of appeal under Rule 23 of the Rules, 1966 is available to the petitioner. The respondents have not committed any illegality in conducting disciplinary proceeding against the petitioner or in recommending the State Government for imposition of major penalty. The State Government has also not committed any illegality in accepting the recommendation of respondent No. 2 and in passing such order of dismissal. In absence of any illegality or violation of rules, instant petition under Article 226 of the Constitution of India filed on behalf of the petitioner is not maintainable.

Miss Sharmila Singhai placed reliance in the matter of Chairman cum Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others, 0, in which the Supreme Court has held that while examining validity and findings of inquiry officer in judicial review, it is not open to High Court to examine findings recorded by inquiry officer as a court of appeal and reach its own conclusions, power of judicial review is not directed against decision but is confined to decision-making process. Miss Sharmila Singhai further placed reliance-in the matter of Arundhati Ashok Walavalkar Vs. State of Maharashtra, in which the Supreme Court has held that travelling of a judge without ticket thrice in local train, and on detection misusing her official identity card, creating unnecessary scenes on platform and threatening railway staff is grave misconduct unbecoming of a judicial officer hence, punishment of compulsory retirement imposed was not disproportionate to offences alleged.

Mr. Rajeev Shrivastava, learned counsel for respondent No. 3, also vehemently opposed the petition and submitted that the matter is exclusively related to the State of Madhya Pradesh and no part of cause of action arose within the territorial jurisdiction of the High Court/State of Chhattisgarh. Therefore, petition pending before this Court is not maintainable in terms of Section 83(1) of the Madhya Pradesh Reorganization Act, 2000. Mr. Rajeev Shrivastava further submitted that departmental enquiry has been initiated against the petitioner by respondent No. 2, respondent No. 2 has recommended for dismissal of the petitioner to respondent No. 1 and respondent No. 1 has passed the order of dismissal. Therefore, no relief can be granted to the petitioner against respondent No. 3 and petition against respondent No. 3 is not maintainable.

Mr. Rajeev Shrivastava placed reliance In the matter of In Re: "RV", A Judicial Officer, in which the Supreme Court has held that if a Judge of the High Court during course of hearing a matter on judicial side notices illegality/misconduct committed by subordinate court, then the Judge of the High Court is required to dispose of the case on merits and should avoid criticism of, or observations on the ''conduct'' of the subordinate judicial officer in the judicial proceeding, but is required to initiate official proceeding separately for inviting attention of the Hon''ble Chief Justice to the facts describing the conduct of the Subordinate Judge concerned. Mr. Rajeev Shrivastava further placed reliance in the matters of W.W. Joshi and Others Vs. State of Bombay and Others, , and Shankar Jayaram and Another Vs. State of Maharashtra and Another, in which the High Court of Bombay while dealing with the provisions of Sections 87, 88 and 116 of the States Reorganization Act, 1956 (Act 37 of 1956), has held that in order to challenge the termination of service under Article 226 of the Constitution of India it is sufficient for the Government servant only to establish that an order for termination of his service has been made and also at a place where its consequence fell on the servant, the cause of action would arise at a place where the order of termination of service was made and also at a place where its consequences fell on the servant.

The petitioner was appointed as Civil Judge Class-II by the erstwhile State of Madhya Pradesh vide its order dated 14-64990, he was posted as Civil Judge Class-H and Judicial Magistrate First Class, Dantewada and was working as judicial officer. On the basis of complaint made by one Bali Nagwanshi vide complaint dated 4-4-1995, preliminary enquiry was conducted against the petitioner by the District & Sessions Judge, Jagdalpur at the instance of respondent No. 2. The District & Sessions Judge, Jagdalpur submitted preliminary enquiry report against the petitioner and on the basis of report of preliminary enquiry, departmental proceeding was initiated against the petitioner by respondent No. 2 i.e. the High Court of Madhya Pradesh. The then District Judge (Vigilance) Mr. P.C. Mishra was appointed as enquiry officer who conducted enquiry and submitted his report dated 8-10-1997 to respondent No. 2. On due consideration of the said report, same was accepted by respondent No. 2 and show cause notice for imposition of major penalty was issued to the petitioner. After affording opportunity of hearing to the petitioner, imposition of major penalty i.e. removal from service was recommended by respondent No. 2 to respondent No. 1. On the basis of recommendation made by respondent No. 2, respondent No. 1 has passed the order of removal of the petitioner from service vide order dated 21-5-98.

The State of Chhattisgarh was part of the erstwhile State of Madhya Pradesh. The Madhya Pradesh Reorganization Act, 2000 (No. 28 of 2000) came into force from 1st of November, 2000 and the State of Chhattisgarh was formed on 1-11-2000. Present petition under Article 226 of the Constitution of India was filed by the petitioner before the High Court of Madhya Pradesh on 2-11-98. After reorganization and formation of the new State of Chhattisgarh in accordance with the provisions of Section 83(1) of the Madhya Pradesh Reorganization Act, 2000, present petition has been received on transfer from the High Court of Madhya Pradesh by this High Court. As per sub-section (2) of Section 30 of the Act of 2000, the Chief Justice of the High Court of Madhya Pradesh was competent to certify transfer of case pending before it to the High Court of Chhattisgarh. Respondent No. 3 has not challenged the certificate issued by the Chief Justice or the transfer order of the case passed by the Chief Justice of the High Court of Madhya Pradesh. Therefore, I do not find any force in the submission of counsel for respondent No. 3 and even on the basis of the judgments of the High Court of Bombay in W.W. Joshi''s case (supra) and Shankar Jayaram''s case (supra) cited by Mr. Rajeev Shrivastava. Cause of action would also arise where consequences fall, which in this case is at Dantewada, which is presently in the State of Chhattisgarh.

Departmental enquiry against the petitioner has been conducted under the Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966 (for short ''the Rules of 1966''). The order passed by the State Government was appealable under Rule 23 of the Rules, 1966. The petitioner has not preferred any appeal before the competent authority and has straightway filed petition under Article 226 of the Constitution of India for issuance of writ. Thus it has to be seen that whether this petition will lie despite availability of alternative remedy.

While dealing with the question of maintainability of writ petition without exhausting the remedy available under the law or without exhausting the alternative remedy, the Supreme Court in the matter of State of H.P. and Others Vs. Gujarat Ambuja Cement Ltd. and Another, has held that there are two well-recognized exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. The Supreme Court has also considered that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition.

While dealing with same question, the Supreme Court in the matter of Harbanslal Sahnia and Another Vs. Indian Oil Corpn. Ltd. and Others, , has held that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.

In the present case, learned counsel for the petitioner has submitted that the petitioner was posted as judicial officer and his order was subject to appeal and revision, therefore, the remedy of appellate and revisional forum was available to the party who has made complaint instead of availing such remedy. As per the petitioner, the order passed on judicial side could not be the subject matter of judicial proceeding, therefore, he was not obliged to avail or exhaust the remedy available under the Rules of 1966. As held by the Supreme Court in the matter of Zunjarrao Bhikaji (supra), mere mistake of law or wrong interpretation of law cannot be the basis for initiating proceedings against quasi judicial authority.

In the matter of Kashi Nath Roy Vs. State of Bihar, while expunging the desperate remarks made against a judicial officer, the Supreme Court has observed in para 7 of its judgment that a mistake or an error committed by a Judge beyond the limits of tolerance is no ground to inflict condemnation on the Judge-Subordinate, unless there existed something else and for exceptional grounds.

In Ramesh Chander''s case (supra) while disapproving the practice of initiation of disciplinary proceedings against officers of subordinate judiciary merely on the ground that orders passed by them are wrong, the Supreme Court has observed in para 17 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". The Supreme Court has further held that "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".

Normally, the order passed by a Judge on judicial side should not be the subject matter of disciplinary enquiry unless he 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 or unless there existed something else or he has passed the order for extraneous consideration.

As per submission of learned counsel for the petitioner, aforesaid elements for initiation of disciplinary enquiry do not exist in the present case, therefore, the disciplinary authority was not competent to initiate disciplinary enquiry against the petitioner who was posted as judicial officer and has passed order on judicial side. By making such submission, learned counsel for the petitioner has tried to establish maintainability of this writ petition despite availability of alternative remedy.

In exercise of writ jurisdiction in terms of Article 226 of the Constitution of India, the High Court cannot go into the facts of the case or investigate the case. Undisputedly, matter relating payment of Rs. 34 lakhs due to complainant Bali Nagwanshi was pending before the Additional Collector/Divisional Forest Officer, Dantewada and the payment was stopped by passing judicial order by the petitioner and thereafter, complaint against the petitioner was made alleging that the petitioner and the Additional Collector/Divisional Forest Officer had acted hand-in-glove to elicit money from the complainant in the matter of disbursement of Rs. 34 lakhs due to the complainant. Thus the allegation in a nutshell is that the petitioner misused his office and passed judicial orders for considerations which were extraneous and not germane for decision of the matter before him, going beyond the limits of jurisdiction conferred on him by law for ulterior motive. In preliminary enquiry also truth and substance was found in the allegations against the petitioner.

On the basis of disciplinary enquiry, the competent authority/employer has passed the order impugned which thus was not without jurisdiction. Initiation of disciplinary enquiry on such allegations of being actuated by corrupt motives which certainly reflects on reputation, integrity and good faith is not only within jurisdiction of the disciplinary authority, but also satisfies the test for initiation of disciplinary proceedings against judicial officers in Ramesh Chander''s case (supra) that "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 of India may exercise its supervisory jurisdiction". Further, disciplinary proceedings were launched after prima facie looking into the allegation in the preliminary enquiry, thus the disciplinary proceedings cannot be said to be not on sound grounds.

It is worth mentioning that the petitioner has not taken the ground that the order passed by the petitioner in a judicial proceeding was the subject matter of appeal and revision, therefore, departmental proceeding against a judicial proceeding which was subject matter of appeal and revision was not competent before the disciplinary authority/enquiry officer or even he has not taken this ground in his petition.

Seen in the light of dictum of the Supreme Court in Harbanslal Sahnia''s case (supra) and Gujarat Ambuja''s case (supra), I find that the petitioner has not prayed for enforcement of any of the fundamental rights, proceeding before the disciplinary authority was not wholly without jurisdiction or base and vires of rules has also not been challenged. The petitioner has failed to show that there has been failure of the principles of natural justice. The petitioner has also failed to show any abuse of process of law in availing alternative statutory remedy. Thus in absence of any of the elements for entertaining a writ under Article 226 of the Constitution of India, despite availability of alternative remedy, the writ petition filed on behalf of the petitioner is not maintainable and deserves to be dismissed. The petition is, therefore, dismissed. However, the petitioner shall be at liberty to avail statutory remedy available to him under the law. If the petitioner avails such remedy, findings in this case would not come in the way of deciding the appeal on its own merits. No order as to costs.