Kundan Lal Yaduvanshi vs State of Rajasthan and Others

Ajit Singh, J.—During the pendency of this petition the original petitioner/delinquent employee has died and the case is being perused by his legal representatives. The prayer of delinquent employee is that order dated 23.11.2002 by which his entire pension stands forfeited by way of punishment be quashed.

The delinquent employee was a member of Higher Judicial Services. And at the relevant time he was posted as Special Judge, SC/ST Court, Pratapgarh. On 04.06.1996, Gopal and Kaluram, who are brothers, were going on a motor-cycle and seeing the police they left the motor-cycle and fled. The police reached the spot and seized 7 kilogram opium from the motor-cycle. Thereafter, the police arrested Kamal and Shantilal and filed charge-sheet against them in the Court of Sessions Judge, Pratapgarh. In the charge-sheet, Gopal and Kaluram were shown as absconders. The matter was registered as case No. 72/1996; State Vs. Kamal Singh and Ors. for offence under Section 8/18 of the Narcotics Durgs and Psychotropic Substances Act, 1985 (in short ''NDPS'' Act) and it was pending in the Court of Sessions Judge, Pratapgarh. Gopal was later arrested and then, released on bail by the Sessions Judge, Pratapgrah vide order dated 15.12.1998. On 14.06.1999, Kaluram surrendered before the Court of Special Judge, SC/ST Cases, Pratapgarh Camp at Chittorgarh presided over by the delinquent employee. On the same day, Kaluram applied for bail and original record was called for from Pratapgrah for hearing on the next date i.e. 15.06.1999. And on 15.06.1999, the delinquent employee ordered for release of Kaluram on bail.

After the passing of bail order of Kaluram, some complaints were made against the delinqeunt employee. The cognizance of complaints were taken and a preliminary enquiry was held. The Administrative Judge having regard to the prima facie material brought on record against the delinquent employee for dereliction of duty in judicial dishonesty while granting bail to Kaluram, directed that an enquiry under Section 16 of the Rajasthan Civil Services (Classification, Control and Appeals Rules), 1958 (in short ''CCA Rules, 1958'') be initiated. This the Administrative Judge did vide order dated 28.9.1999. Thereafter, Hon''ble The Chief Justice vide order dated 02.11.1999 nominated a sitting High Court Judge to hold an enquiry.

Statement of allegations and the charges were, therefore, framed against the delinquent employee and the same were supplied to him vide memorandum dated 15.01.2000. The two charges framed against the delinquent employee were these:-

"1. Statement of Charge No. 1

Shri K.L. Yaduvanshi, Special Judge, SC/ST Court, Pratapgarh Camp at Chittorgarh entertained an application for bail moved by accused Kalurama proclaimed offender, in Case No. 72/96 under Section 8/18 of the NDPS Act State V/s Kamal Kant Sharma Singh and remanded him to judicial custody upto 2.7.1999 with a direction to produce him before the District and Sessions Judge, Pratapgarh, yet he requisitioned the record from the Court of District and Sessions Judge, Pratapgarh, yet he requisitioned the record from the Court of District and Sessions Judge, Pratapgarh for 15.6.1999 through special messenger, and on the date, without giving notice of the bail application to the concerned P.P. attached to the Court of NDPS Cases, Pratapgarh, enlarged accused Kaluramon bail. He thus acting in hasty manner showed undue favour to Kalu Ram. This act casts shadow on his reputation for integrity and devotion to duty. Shri Yaduvanshi was actuated with corrupt motive and has thus misconducted himself in the discharge of his duties.

Statement of Charge No. 2.

Shri Yaduvanshi while functioning as Special Judge, SC/ST Cases, Pratapgarh, Camp Chittorgarh did not give the notice of the bail application filed by Shri Kalu Ram, to the P.P. attached to Court of NDPS Cases, Pratapgarh and decided the said bail application without hearing the P.P. of the Court. He thus ignored the express provisions of Section 37, NDPS Act."

The delinquent employee in his reply denied the charges and stated that notice of the bail application was given to the Public Prosecutor of the Court of SC/ST, Pratapgarh Camp at Chittorgarh as per the ususal practice. He also denied having ordered for requisitioning of the file from Pratapgarh through Special Messenger and stated that he granted bail to Kaluram because identically placed co-accused Gopal had already been granted bail.

During the disciplinary enquiry, the department examined 6 witnesses whereas delinquent employee examined only one witness. Importantly the State also challenged the order of delinquent employee granting bail to Kaluram before the High Court in S.B. Criminal Misc. Bail Cancellation Application No. 5/2000 and the learned Single Judge vide order dated 27.9.2000 cancelled his bail with a specific finding that delinquent employee had no jurisdiction to grant bail.

The delinquent employee retired from service on 31.5.2001 on attaining the age of superannuation. The Enquiry Officer after scanning the evidence brought on record, in his report dated 8.10.2001 gave a finding that though Charge No. 2 was not proved, there was enough material to establish that deliquent employee showed undue favour to Kaluram while granting bail and this conduct confirmed that his integrity was doubtful. The relevant extract of the report of Enquiry Officer, who was none other than a sitting High Court Judge, reads as under:-

"Thus, looking to the entire facts and circumstances of the case and the facts that in that case huge opium (7 Kgs.) was recovered; accused Kaluramwas absconding since 1996; challan was filed in his absence; he surrendered on 14-6-1999 before the Court of Special Judge, SC/ST Cases, pratapgarh Camp Chittorgarh, though the case pertained to the Court of Special Judge, NDPS Cases, Pratapgarh; on the same day i.e. on 14-6-1999 file was called by the delinquent officer from the court of Special Judge, NDPS Cases, Pratapgarh through Special messenger and on the next day i.e. on 15-6-1999 he was released on bail by delinquent officer. In my considered opinion, granting bail to accused Kaluramin such circumstances certainly casts shadow or stigma on the reputation of delinquent officer and, therefore, that part of charge Mo. 1 that delinquent officer showed undue favour to accused Kaluramwhile granting bail to him appears to have been proved.

It further appears that before presenting bail application at Chittorgarh, though that application pertained to the court of Special Judge, NDPS Cases, Pratapgarh, there was understanding or collusion between accused Kaluramand the present delinquent officer on the point that with some ulterior motive it would be filed in his court while holding camp at Chittorgarh and the same was filed before him on 14-6-1999 and he requisioned the file from the court of Session, Pratapgarh through special messenger and released the accused Kalu Ram on bail in a serious offence.

For the reasons stated above, it is held that the following portion of charge No. 1 framed against the delinquent officer:-

(1) That he requisitioned file through Special Messenger from the court of session, Pratapgarh.

(2) That he showed undue favour to accused Kaluramwhile releasing him on bail and such act casts shadow on his reputation for integrity and devotion to duty and thus, the delinquent officer Shri K.L. Yaduvanshi was actuated with corrupt motive and has misconducted himself in the discharge of his duties.

Stands proved and he is held guilty of the said charge to the above extent.

Before parting with this report, I would like to mention here that the delinquent officer Shri K.L. Yaduvanshi, RHJS has already retired on 31-5-2001 after attaining the age of 60 years".

The report of Enquiry Officer was then placed in the Judges Full Court Meeting of the High Court wherein it was resolved to issue a show-cause notice to the delinquent employee as to why his entire pension be not withheld permanently. Pursuant to the resolution, show cause notice was issued to the delinquent employee. On receipt of his reply, the matter was again placed in the Full Court Meeting where resolution was passed to forfeit the entire pension of delinquent employee and for this Government be moved. The impugned order of punishment has thus been passed by the Government on the basis of resolution of the Full Court Meeting.

It has been argued on behalf of the delinquent employee that merely for granting bail by judicial order, the High Court should not have initiated disciplinary proceedings more particularly as the bail was not actuated by malice, bias or illegality. The learned counsel for the delinquent employee in support of his submission has relied upon the decision of Supreme Court in Ramesh Chander Singh Vs. High Court of Allahabad and Another, (2007) 113 FLR 841 : (2007) 4 JT 135 : (2007) 3 SCALE 559 : (2007) 4 SCC 247 : (2007) 3 SCR 198 . On the other hand, the learned Senior Counsel appearing for respondent No. 2 - Rajasthan High Court has strongly defended the action taken against the delinquent employee. The learned Senior Counsel has also referred to the service record of delinquent employee which was not clean.

The record reveals that Kaluram was shown absconding by the prosecution in a serious offence under N.D.P.S. Act and the case of co-accused persons was pending in the Court of Sessions Judge, NDPS Act Cases, Pratapgarh. And Kaluram after absconding for 3 long years instead of surrendering before the regular Court where his case was pending, cleverly surrendered in the Court at Chittorgarh Camp which was being presided by delinquent Officer as SC/ST Judge. Also on the same day, he filed an application for bail. The record further reveals that in utter haste the original trial record was requisitioned from Pratapgarh to Chittorgarh and on the next date the delinquent employee ordered for bail to Kalu. For offence under Section 8/18 of the NDPS Act, bail of an accused cannot be granted unless there are reasonable grounds for believing that accused is not guilty for such offence that he was not likely to commit such an offence while on bail. The delinquent employee did not record such findings while granting bail to Kaluram. Also the bail order passed by the delinquent employee was challenged in the High Court and it was set aside on the ground that he had no jurisdiction under the NDPS Act to grant bail to Kalu. For these reasons we are of the view that Enquiry Judge rightly came to the conclusion that delinquent employee actuated with corrupt motive showed undue favour to Kaluram while granting bail and such act created a doubt on his integrity and reputation.

It is true that in case of Ramesh Chander Singh (supra), the Supreme Court has held that while taking disciplinary action based on judicial orders, High Court must take extra care and caution. In that case, the Supreme Court also disapproved the practice of initiation of disciplinary proceedings against Judicial Officers merely because judgment/orders passed by the Judicial Officers were wrong. But the case in hand is distinguishable from the case of Ramesh Chander Singh (supra). In that case the delinquent employee had granted bail to an accused arrested under Section 302 of the Indian Penal Code after one year of his detention and that too, when one of the similarly situated co-accused person had been granted bail by the High Court. The Supreme Court in paragraph 11 of the judgment also observed that it was not a case under TADA Act or the NDPS Act having statutory bar in granting bail except for special reasons. In the present case, the delinquent employee granted bail to Kaluram within 24 hours of his surrender who was an accused under the NDPS Act and had been absconding for more than 3 years. Also in Ramesh Chander Singh (supra), the order of bail granted by the delinquent employee was not challenged in the High Court whereas in the present case the order passed by the delinquent employee was challenged and it was set aside by the High Court on the ground that he had no jurisdiction to grant bail. The case of Ramesh Chander Singh (supra), therefore, does not help the delinquent employee.

It has next been argued that since the charge-sheet was issued by Hon''ble the Chief Justice alone, the whole enquiry is bad in law. According to the learned counsel, as per resolution of the High Court, the Chief Justice and the Administrative Judge are jointly empowered to initiate disciplinary action against Judicial Officers including District Judges. This argument has no substance because the Administrative Judge vide order dated 28.9.1999 had directed for initiating disciplinary enquiry and then the Chief Justice vide order dated 2.11.1999 nominated a sitting High Court Judge to hold an enquiry. Therefore, it cannot be said that disciplinary action was initiated only by the Chief Justice and not jointly by him and the Administrative Judge.

It has also been argued that since the delinquent employee had retired from service before completion of the departmental enquiry, the High Court lost its control over him and it could not have recommended to Governor for imposing punishment to withhold pension. This submission has also no force because Rule 7(2)(a) of the Pension Rules 1996 clearly provides that if the departmental proceedings were initiated while the government servant was in service whether before his retirement or during his re-employment, shall, after final retirement of the government servant, be deemed to be proceedings under the rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the government servant had continued in service. It is not in dispute that under Rule 7 the Governor is empowered to withhold pension of a government employee permanently if in any departmental proceeding he is found guilty of grave misconduct.

It has lastly been argued that the punishment imposed to delinquent employee is shockingly disproportionate and that his good service record including extension of service for two years, from 58 to 60 years, was not taken into consideration. We have already seen above that a charge of serious misconduct has been found proved against the delinquent employee. The delinquent employee, in collusion with accused Kaluram, without jurisdiction illegally granted bail to him within 24 hours of his surrender, irrespective of the fact that he had been absconding for more than three years and that, too, in a serious offence under NDPS Act. Also on examining the service record of delinquent employee, we find that as many as 31 complaints were received against him regarding his behaviour, conduct and integrity. In the year 1999 his integrity was reported to be ''doubtful'' and in the year 2000 he was assessed as a ''below average Officer'' with very bad reputation and his integrity was advised to be watched. It is well settled that Judicial Service is not a service in the sense of employment as is commonly understood. Judges discharge their functions while exercising the sovereign judicial power of State. Their honesty and integrity is expected to be beyond doubt. Nature of Judicial Service is such that it cannot afford to suffer continuance in service a person of doubtful integrity. The delinquent employee had retired from service before the submission of Enquiry Report. His misconduct was found to be proved in respect to a serious charge, which did create a doubt on his integrity and reputation. Therefore, having regard to the misconduct of delinquent employee, the punishment of withholding his entire pension cannot be held as shockingly disproportionate.

For these reasons, we find no merit in the petition. It is accordingly dismissed.