Skip to content


Bhagwat Swaroop Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 701 of 1972
Judge
Reported in1977WLN496
AppellantBhagwat Swaroop
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredIn Shahoodul Haque v. The Registrar
Excerpt:
.....government should have communicated the statement of findings arrived at by it together with the reasons recorded therefor to the petitioner, it compliance with the provisions of sub-rule (12) of rule 16 of the rules, as well as in fulfilment of the requirements of the principles of natural justice.;(b) criminal procedure code - section 100 and rajasthan civil services (classification control & appeal) rules, 1958--rule 14--magistrate acting on insufficient material and issuing search warrant--held, it is not sufficient to institute disciplinary proceedings unless his action is malafide.;where a magistrate, while exercising his judicial discretion, acted upon insufficient it material or if it is found that further evidence of substantial nature was necessary before a search warrant..........in the present case was that instead of communicating the aforesaid statement of findings and the reasons recorded therefor by the disciplinary authority to the petitioner only a substance thereof was communicated to him by the order of the state government dated february 25, 1971. it need not be emphasised that the state government should have communicated the statement of findings arrived at by it together with the reasons recorded therefor to the petitioner, in compliance with the provisions of sub-rule(12) of rule 16 of the rules, as well as in fulfilment of the requirements of the principles of natural justice. but the further quest on that arises is as to whether any prejudice has been caused to the petitioner in the present case and whether any useful purpose would be served by.....
Judgment:

Dwarka Prasad Gupta, J.

1. The petitioner is a member of the Rajasthan Administrative Service. In the year 1967 he was posted as Magistrate First Class at Sri Ganganagar. On July 4, 1967 one Lalkhan submitted an application under section 80 of the Code of Criminal Procedure before the petitioner alleging that his wife Smt. Mima had been taken away by her father in his absence and without his consent and that his wife was kept in illegal confinement by her father. The petitioner recorded the statement of Lalkhan and issued a search warrant under Section 100 of the Code directing that Smt. Mima, wife of Lalkhan, should be recovered and should be produced before the petitioner in his court on July 13, 1967 1c appears that Smt. Mima was recovered by the police and was produced before the petitioner on July 8, 1967 although it was a holiday, being the second Saturday of the month and on that account his court was closed But the petitioner is alleged to have recorded the statement of Smt. Mima on that very day and set her free, directing that she could go where ever she liked according to her free will A complaint appears to have been made in respect of the proceedings in the afore said case and as a result of which a disciplinary enquiry ensued against the petitioner. The petitioner was given notice dated April 8, 1968 in respect of initiation of proceedings against him under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the Rules') along with a statement of allegations and a charge sheet. The charge framed against the petitioner was that he exhibited lack of proper care and caution, impartiality and responsibility expected of a Magistrate in dealing with the aforesaid case under Section 100 of the Code and abused the process of law by issuing a search warrant for the recovery of Smt. Mima from the custody of her parents without taking proper evidence and further that when Smt. Mima was produced before the petitioner he held his court 'behind closed doors on a holiday', and handed her over to Lalkhan without proper examination of the lady and without considering the counter claim of her parents An enquiry was conducted into the matter by the Commissioner, Departmental Enquiries, Rajasthan, who in his report dated March 24, 1970 expressed the view that the charge levelled against the petitioner was not proved. The State Govt. however, did not agree with the findings recorded by the enquiry officer in his report and came to the conclusion by its order dated February 25, 1971 that the petitioner exhibited lark of proper care and prudence in dealing with the aforesaid case under Section 100 of the Code and abused the process of law by issuing a search warrant for the recovery of Smt. Mima from the custody of her parents without taking proper evidence in support of the application of Lalkhan. The State Government also held that the petitioner did not exercise due care and caution expected of a Magistrate in dealing with (he aforesaid case. The petitioner was, therefore, found guilty of the hang framed against him and the State Government imposed a penalty of stoppage of one grade increment without cumulative effect upon the petitioner. It was also ordered that the subsistence allowance already drawn by the petitioner daring the period of suspension would only be payable to him for that period and the period of suspension would be treated as period spent on duty for the purposes of pension and increment. The petitioner filed a review petition but the same was also rejected on July 5, 1971. Thereupon the present writ petition was filed in this Court.

2. The contention of the learned Counsel for the petitioner is that the order issued by the State Government on February 25, 1971 was not a speaking order and that the reasons for holding the petitioner guilty of the charges levelled against him as also the reasons for the disagreement of the State Government with the finding recorded by the enquiry officer in his report were not communicated to him It was further submitted by the learned Counsel that the petitioner exercised judicial discretion in issuing the search warrant under Section 100 of the Code and he should not have been penalised for exercising his judicial powers under the provisions of the Code of Criminal Procedure, even if the same was found defective in some respect Lastly, it was argued by the learned Counsel that the order passed by the State Govt. imposing penalty upon the petitioner was based on no evidence what so ever.

3. The learned Additional Government Advocate, who appeared for the respondents, placed before this Court the record of the disciplinary proceedings conducted against the petitioner. It appears that after the enquiry officer submitted his report dated March 24, 1970 the matter was considered by the State Government at various levels and ultimately the then Chief Minister passed the following order:

The statement that the exercise of discretion by a judicial officer should not be called in question in a departmental enquiry is unexceptionable. But in this case there can be no doubt that in the issue of the search warrant for the girl and in later disposing of the case on the production of the girl in the Court, Shri B.S. Mathur exhibited lack of care and prudence and that the manner in which the whole case was dealt with and disposed of was an abuse of the process of law. This has been well brought out in the note of the D.S... recorded the cursory statement of Lalkhan and issued the warrant under Section 100 Cr. P.C. He did not care to consider that the girl was to be recovered from the custody of her parents and that more substantial evidence was necessary before issue of a warrant under Section 100 Cr. P.C. Even when the girl was produced before him on 8th July, 1967, he got only the statement of the girl recorded in a most casual and cursory manner and released the girl, which in effect meant her being handed over to Shri Lal Khan, to be whisked away by him to some unknown destination. Even at this stage, when the girl was produced before him, he gave no opportunity to the parents of the girl to plead their case also. The manner in which the whole case was disposed of would show that the Magistrate was acting in a most reckless and arbitrary manner, and that he was not exercising due care and caution expected of a Magistrate dealing with a case under Section 100 Cr. P.C.

In these circumstances, I think that the penalty of censure would not be a proper or adequate penalty in this case. Considering the circumstances of the case, the minimum penalty that is warranted in this case is the stoppage of one grade increment without cumulative .effect. As for the suspension period he will be entitled only to the subsistence allowance payable to him under the rules. Though I would not like to take the extreme step of divesting the Magistrate of his magisterial powers, it would be advisable that for the next few years at least he is not posted on a post which would involve the exercise of magisterial powers.

4. The order communicated to the petitioner on February 25 1971 'the substance of the aforesaid order passed by the then Chief Minister in the disciplinary proceedings against the petitioner. It has been repeatedly observed by this Court that in matters relating to disciplinary enquiries, the delinquent employee should not only be informed about the fact that he was found guilty and the penalty imposed upon him but the reasons on the basis of which the disciplinary authority came to the conclusion that the charges levelled against the delinquent employee were found to be proved must also be communicated to him. The requirement of supplying the reasons which led the disciplinary authority to arrive at the decision holding the delinquent employee guilty of the charge framed against him has been emphasised rim and again, because the supplying of reasons alone could enable the delinquent employee to seek redress by prosecuting further remedy by way of appeal revision or review which may be available to him under the rules or by taking recourse to the remedy of a petition under Article 226 of the Constitution before this Court. It need not be restated that the disciplinary authority as well as the appellate or revisional or reviewing authority, while dealing with matters relating to disciplinary enquiries, are required to act judicially and these administrative authorities while dealing with the disciplinary enquiries have to act in a quasi judicial manner, Unless the delinquent employee is made a ware of the reasons which impelled the disciplinary authority to come to the conclusion that the said employee was guilty of the charge framed against him, the concerned employee cannot successfully prosecute his further remedy in that matter. The decision of this Court in Ram Khilari v. Union of India 1976 RLW 320 may be cited in support of this view. In Ajanta Industries v. Central Board of Direct Taxes, New Delhi 1976 (UJ) SC 157 it was observed by their Lordships of the Supreme Court, -

Communication of the order is an absolutely essential requirement since the assessee is then immediately made aware of the reasons which impelled the authorities to pass the order... It is submitted, on behalf of the Revenue, that the very fact that reasons are recorded in the file, although these are not communicated to the assessee fully meets the requirement of Section 127(1). We are unable accept this submission.... The reasons for recording of reasons in the order and making these reasons Known to the assesses is to enable an opportunity to the assesses to approach the High Court under its writ jurisdiction under Article 226 of the Constitution and even to this Court under Article 136 of the Constitution in an appropriate cafe for challenging the order inter alia, either on the ground that it is malafide or arbitrary or that it is based on irrelevant and extraneous Considerations... When Law requires reasons to be recorded in a particular order affecting prejudicially the interests of any person, who can challenge the order in Court, it ceases to be a mere administrative cider and the vice of violation of the principles of natural justice on account of omission to communicate the reasons is not expiated.

5. Rule 16 of the Rules which deals with the procedure for conducting enquiries for imposition of major penalties, also specifically provides that not only the orders of the disciplinary authorities imposing penalties but the reasons for the findings arrived at by the disciplinary authorities should also be communicated to the delinquent employees Sub-rule (12) of Rule 16, which is relevant for the present purpose, runs as under:

(12) Orders passed by the Disciplinary Authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the Inquiring Authority and. where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reason for disagreement, if any, with the findings of the Inquiring Authority, unless they have already been supplied to him, and also a copy of the advice, if any, given by the Commission & where the Disciplinary Authority has not accepted the advice of the commission, a brief statement of the reasons for such non-acceptance.

It will, however, not be necessary to furnish a copy of the report of the Enquiry Officer in the case where any of penalties specified in Clause (i) to iii) of Rule 14 is imposed on the Government Servant.

Thus the disciplinary authority is required to communicate to the delinquent employee not only its orders imposing penalties but also a copy of the report of the Inquiring Authority where the disciplinary authority is not the Inquiring Authority and a statement of the findings recorded by the disciplinary authority and also brief reasons for disagreement, if any, with the finding arrived at by the Inquiring Authority. In case the advice of the Public Service Commission is required to be obtained and is sought, then the disciplinary authority should also supply the delinquent employee a copy of the advice given by the Public Service Commission and where such advice has not been accepted a brief state tent of the reasons for non-acceptance thereof is also required to be supplied to the employee concerned. In cases where minor penalties specified in Clauses (i) to (iii) of Rule 14 are imposed on a Govt. servant after the proceedings under Rule 16 are undertaken against him, the requirement of furnishing a copy of the report of the Inquiring Officer is dispensed with under the aforesaid provision. In the present case, after the Inquiring Authority submitted its report, the disciplinary authority appears to have taken the view, that the ends of justice would be served if a minor penalty is imposed upon the petitioner, although it disagreed with the fir dings arrived at by the Inquiring Authority that the charge levelled against the petitioner was not proved. In these circumstances, the disciplinary authority was no doubt required to supply to the petitioner the statement of its findings along with brief reasons for disagreement with the findings recorded by the Inquiring Authority. I have quoted in extenso the findings recorded by the disciplinary authority along with the reasons therefor. What was done however in the present case was that instead of communicating the aforesaid statement of findings and the reasons recorded therefor by the disciplinary authority to the petitioner only a substance thereof was communicated to him by the order of the State Government dated February 25, 1971. It need not be emphasised that the State Government should have communicated the statement of findings arrived at by it together with the reasons recorded therefor to the petitioner, in compliance with the provisions of Sub-rule(12) of Rule 16 of the Rules, as well as in fulfilment of the requirements of the principles of natural justice. But the further quest on that arises is as to whether any prejudice has been caused to the petitioner in the present case and whether any useful purpose would be served by sending the matter back to the State Government now with a direction to comply with the requirement of Sub-rule (12) of Rule 16 of the Rules, and the principles of natural justice.

6. The charge framed against the petitioner in the present case was based on two legs, which related to the occurrence which had taken place on July 4, 1967 & July 8, 1967 respectively. So far as the events which took place on July 4, 1967 is concerned the case of the petitioner is that he had a judicial discretion in the matter and even if the procedure adopted by him was found wanting in certain respects, then also he should not have been penalised in the departmental proceeding. The State Government, however, was of the view that the petitioner, while issuing a search warrant under Section 100 of the Code of Criminal Procedure, should have exercised due care and caution, prudence and circumspection and that a search warrant in the circumstances of the case, when the father of Smt. Mima was alleged to have taken her should not have been issued so lightly, merely after recording a cursory statement of Lal Khan while no evidence of marriage of Lalkhan with Smt. Mima was produced before him Thus in the opinion of the State Government, the petitioner exhibited lack of care and prudence and he exercised his discretion in an improper and careless manner while issuing the search warrant under Section 100 of the Code of Criminal Procedure. It is undeniable that while issuing a search warrant under Section 100 of the Code, a Magistrate exercises a judicial discretion vested in him by law and the amount of evidence which a Magistrate should require in a particular case for issuing a search warrant under Section 100 of the Code is a matter which relates to the exercise of his judicial discretion. The order of the Magistrate passed in the exercise of judicial discretion in such matters, if it is not in accordance with law or is improper or irregular or even if the procedure adopted by him is found to be defective or wanting in some respect, could be set aside on revision by the Sessions Judge or by this Court. But where a Magistrate, while exercising his Judicial discretion acted upon insufficient material or if it is found that further evidence of substantial nature was necessary before a search warrant under Section 100 of the Code of Criminal Procedure could have been issued in a particular case, the same could not amount to misconduct and it could hardly be a matter for taking disciplinary action, unless it is alleged & proved that the conduct of the Magistrate, while exercising his judicial discretion, was of a nature not befitting the dignity of his office or where he was actuated by malice and it is found that a particular order was the result of the malafide conduct on the part of the Magistrate. In Kundan Singh Jhala v. State of Rajasthan 1976 WLN (UC) 175 it was held by this Court that merely taking of an erroneous view of law by a delinquent officer, in the absence of malafides. would not amount to mis-conduct. So far as the proceedings which had taken place on July 4, 1967 are concerned it cannot be disputed that the petitioner was acting as a Magistrate and he had a judicial discretion vested in him under Section 100 of the Code of Criminal Procedure and what amount of evidence would have been sufficient in the facts of a particular case for issuing a search warrant was a matter which rested primarily with the petitioner and in the absence of malafides or of a conduct likely to lower the dignity of the office of a Magistrate, it cannot be said that the exercise of discretion by the petitioner in issuing a search warrant under Section 100 of the Code of Criminal Procedure would amount to a mis-conduct for the put poses of taking disciplinary action against him under the Rules. If the order passed by the petitioner was improper on illegal, the same could have been interfered within revision by the Sessions Judge or by this Court and the compactness, illegality or propriety of the order passed by the petitioner, acting as a Magistrate, as also the regularity of the proceedings conducted by him could have been examined by the revisional court under the provisions of the Cr. C.P. Thus the contention of the learned Counsel for the petitioner that the petitioner could not have been punished in disciplinary proceedings for an illegal or irregular or improper exercise of judicial discretion in the present case appears to be well founded as no malafides have been alleged nor he was charged of a conduct lowering the dignity of the office of a Magistrate, but he has been found guilty on account of lack of proper care and prudence on his part so far as the events which took place on July 4, 1967 are concerned.

7. However, the second leg of the charge framed against the petitioner relating to the events which had taken place on July 8, 1967 appear to be of far more serious nature. It has been alleged that the petitioner held his court and recorded the statement of Smt. Mima on July 8, 1967 which was a holiday being a second Saturday and while his court was closed, on that day. In his reply to the charge sheet, which has been reproduced by him in the writ petitioner, the petitioner has not denied the fact that the case relating to the proceedings under Section 100 of the Code of Criminal Procedure was taken up by him on JULY 8, 1967 which was a holiday and at page 10 of the writ petition while admitting the aforesaid facts, he further stated:

It would not be out of place to mention here that courts are never 'open' in the popular sense of the word. Besides these proceedings held 'in camera' are not by themselves invalid in cases of such nature where parties are likely to feel embarrassed in the open trial.

The petitioner is absolutely in error in holding that the courts are never open while in fact it is just the opposite. Ordinarily all cases, civil and criminal, are disposed of by judicial officers and Magistrates in open courts except in certain matrimonial matters, where by law the proceedings are authorised to be held in camera. In any view of the matter whether the doors of the court of the petitioner were open or closed on July 8, 1967 is immaterial as the court was officially closed on the aforesaid date, as it was a holiday, being the second Saturday of the month No explanation worth the name has been furnished by the petitioner as to how and why he held the court on that day and recorded the statement of Smt. Mima and passed the order setting her free to go any where she liked according to her free will. There was apparently no hurry in the matter and no reason appears from the record for the hot haste which the petitioner acted in taking up the case for final hearing on a holiday and thereby depriving the parents of the girl an opportunity of hearing in the matter. It is in this context that the State Government has held that the petitioner did not exercise due care and caution and exhibited lack of care and prudence and acted in a reckless and arbitrary manner This finding is based upon admitted facts. Even if the order recorded by the then Chief Minister would have been communicated to the petitioner, learned Counsel for the petitioner is not in a position to assail this finding or even to state as to what submission the petitioner would have made in the review proceeding or before this Court in fact of the admitted facts that July 8, 1967 was a holiday and the proceeding. in the case were taken up for final disposal by the petitioner on that day, although there is no finding of any urgency recorded by him A certified copy of the order passed by the petitioner on July 8, l967 has been placed on the record by him and has been marked Exhibit 4, but the same does not disclose the urgency, if any at all, which prompted the petitioner to finally hear and dispose of the matter on a holiday, on which day his. court was closed according to law. It is also not in dispute that the parents of smt. Mima were present outside the court room of the petitioner on July 8, 1967 and they might have produced some defence or might have examined some evidence in the case, but they were precluded from doing so because the case was taken up to hearing on a holiday, when the court was officially closed and according to the petitioner the proceedings were held in camera There was no reason in this case for holding the proceedings under Section 100 of the Code of Criminal Procedure in camera, as neither there is any legal sanction for doing so. nor any order directing that the proceedings in the case might be held in camera, has been placed on record. The mis-conduct of the petitioner on this score, of proceeding to finally hear the case on a holiday and dispose of the same in hot haste are so apparent from the admitted facts that the communication of the reason would not have altered the situation. It is undeniable that there was no urgency in the matter nor any reasons for taking up the case for final disposal on the holiday were receded by the petitioner in the proceedings in question In Shahoodul Haque v. The Registrar, cooperative Societies, Bihar : AIR1974SC1896 their Lordships of the Supreme Court held that although there was a breach of the principles of natural justice but on account of the undeniable facts where the guilt is practically admitted, no useful purpose would be served by giving further opportunity to the delinquent employee to disprove the allegations made against him. In such a situation their Lordships of the Supreme Court expressed the opinion thai:

It could not benefit him or make any difference to the, order which could be and has been passed against him. It would only prolong his agony.

8. In the present case also The mis-conduct of the petitioner on this score is so glaring and apparent even on the admitted facts and as such I do not consider it necessary to exercise the extra ordinary jurisdiction of this Court to send the matter back to the. State Government for communication the reasons for its findings to the petitioner. It is well settled that the power of this Court under Article 226 of the Constitution is a discretionary one and the same should be exercised only in proper cases where it is shown that substantial injustice has been caused. I am of the view that the extra ordinary jurisdiction of this Court under Article 226 of the Constitution should not be exercised merely for the purposes of correcting technical flaws in a proceeding. In this view of the matter, it does not appear that any useful purpose would be served or any difference would be made if the State Government is now directed to supply to the petitioner the reasons for its findings and for its disagreement with the report of the Inquiring Officer.

9. As for the last contention of the learned Counsel that the order imposing penalty is based on no evidence, it is sufficient to observe that the facts constituting The mis-conduct on this sore have been admitted by the petitioner himself, viz. he took the proceedings under Section 100 of the Code of Criminal Procedure on July 8, 1967 which was a holiday and his court was officially closed on that day, without recording any reasons for doing so. and after recording the statement of Smt. Mima he passed a final order in the matter on that very day, although their was apparently no urgency. No further evidence in this respect was necessary to prove The mis-conduct of the petitioner.

10. For all that has been said above, I do not feel inclined to exercise the extra ordinary jurisdiction of this Court under Article 226 of the Constitution in the present case and the writ petition consequently fails and is dismissed The parties are, however, left to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //