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REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL      NO.             4553               0F     2012   (Arising Out of S.L.P. (C) No. 1430 OF 2011)

REGISTRAR GENERAL, PATNA HIGH  COURT

— APPELLANT

VERSUS

PANDEY GAJENDRA PRASAD & ORS. — RESPONDENT S

JUDGMENT

D.K.     JAIN,     J.  :

1.Leave granted.

2.This appeal, by special leave, is preferred by the Patna  

High Court, through its Registrar General, against the  

judgment and order dated 21st May, 2010, rendered by a  

Division Bench of the High Court in the writ petition filed  

by respondent no.1. In the said writ petition the first  

respondent had challenged the decision of the Full Court  

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recommending his removal from service as a Railway  

Judicial Magistrate. By the impugned judgment, the  

notification/communication dismissing him from service  

has been set aside with a consequential declaration that  

the said respondent shall be reinstated and paid 40% of  

his back wages as compensation. He has also been  

granted liberty to make representation to the High Court  

regarding the balance 60% of his back wages.  

3.The first respondent in this appeal was appointed in  

Bihar Judicial Service on 29th March 1986, in the cadre of  

Munsif.         In October, 1999, he was functioning as a  

Railway Judicial Magistrate, Barauni Dist., Begusarai. On  

receipt of some reports, alleging misconduct on the part of  

the said respondent, the District and Sessions Judge  

conducted a preliminary inquiry.  Upon consideration of  

his report, the Standing Committee, consisting of five  

Judges of the High Court, issued a show cause notice to  

respondent no. 1. Dissatisfied with his reply, the Standing  

Committee recommended initiation of departmental  

proceedings against him and to place him under  

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suspension.  The said recommendation was subsequently  

approved by the Full Court.

4.The Enquiry Officer, framed four charges against the  

respondent.  However, in his final report, he found the  

following two charges as proved:

“Charge - II

You Sri Pandey Gajendra Prasad while  functioning as Railway Judicial Magistrate,  Barauni granted bail to accused Ajay Kumar  Yadav on 26.11.99 in Rail P.S. Case No.64/99  (G.R. No.2400/99) initially registered under  section 47(A) of the Excise Act for illegal  possession of several packets of Ganja not- with-standing the fact that recovery of Ganja  falls under N.D.P.S. Act and even before the  release of Ajay Kumar Yadav a petition was  filed on behalf of prosecution on 4.12.99, to  add section 17, 18 and 22 of N.D.P.S. Act, but  instead of passing any order on the said  petition you entertained bail application of  another accused namely Ram Kishore  Kusbaha and on 9.12.99 allowed him bail and  thereafter on 16.12.99 accepted bail bonds of  both the accused persons and released them  on bail.

The grant of bail in N.D.P.S. Act by a Judicial  Magistrate is without jurisdiction raising the  presumption of extraneous consideration.

Your aforesaid act of granting bail to accused  under N.D.P.S. Act indicates that the bail was  granted for consideration other than Judicial  which tantamount to Judicial indiscipline,  

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gross misconduct, improper exercise of  Judicial discretion and a conduct unbecoming  of a Judicial Officer.

Charge   –   III   

You Sri Pandey Gajendra Prasad while  functioning as Railway Judicial Magistrate,  Barauni granted bail to one Tara Devi alias  Haseena Khatoon in Barauni Rail P.S. Case  No.76/98 (G.R. No.2428/98) not-with-standing  the fact that her anticipatory bail application  bearing Cr. Misc. No.7301/99, which was  preferred by her against rejection of her  anticipatory bail by the Sessions Judge,  Begusarai vide order dated 11.12.99 in A.B.A.  No.224/98, was dismissed as withdrawn by  this Hon’ble Court on 30.4.99.

The aforesaid act of your granting bail to the  said accused being member of a gang of  lifters engaged in railway thefts, who  committed crime within Barauni Junction and  adjoining station and was thus named  accused in several cases indicates that the  bail was granted for consideration other than  judicial which tantamount to Judicial  indiscipline, gross misconduct, improper  exercise of Judicial discretion and a conduct  unbecoming of a Judicial Officer.”

5.The Standing Committee accepted the enquiry report  

and recommended imposition of punishment of dismissal  

from service on the first respondent.  As aforesaid, the  

recommendation was approved by the Full Court and  

accepted by the Governor. Consequently, vide a  

Notification dated 19th June, 2006, issued by the Govt. of  

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Bihar; which was communicated to him on 24th June, 2006;  

the first respondent was dismissed from service.  

Aggrieved thereby, he filed a writ petition in the High  

Court.  Quashing the order of dismissal, the Division Bench  

of the High Court commented on the afore-extracted  

charges as follows:

In     Re:     Charge     II  :

“Undoubtedly, the investigating officer had filed  an application on 04.12.1999 to add Sections 17,  18, 22 of the N.D.P.S. Act which the petitioner  had directed to be kept on record.  In a criminal  trial various kinds of petitions are filed which are  kept on record.  Some are pressed, order passed,  others simply remain on record and are never  pressed.  If the prosecution was so sanguine for  the need to prosecute under the N.D.P.S. Act, it  was for the Assistant Public Prosecutor to take  steps in accordance with law by pressing that  application.  The petitioner as a Judge was not  expected to become the prosecutor also as that  was not his role.  If no one pressed that  application, he was under no compulsion to suo- motu treat it as a case under N.D.P.S. Act to deny  liberty of the citizen.  The aspect of the petitioner  was dealing with the liberty of the citizen in  custody based on prosecution materials laid  before him when he exercised his judicial  discretion, is a matter which has a foremost  bearing in our mind.  To us, it is primarily for the  prosecution to answer that if the F.I.R. was  lodged on 02.11.1999, why was it so lax in a  matter as serious under the N.D.P.S. Act and why  it acted so casually and took as long as  08.02.2000 to submit final form under N.D.P.S.  

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Act.  The departmental enquiry report proceeds  on a wrong presumption at paragraph 22 that in  the facts the petitioner granted bail without  having jurisdiction to do so as a Magistrate under  the N.D.P.S. Act.  If he granted bail on  16.12.1999 and the N.D.P.S. Act came to be  added on 08.02.2000, can it be simply logically  concluded that it was a deliberate mistake in  exercise of judicial discretion unbecoming of a  judicial officer based on the records as they stood  on the date when he was considering liberty of  the citizen.

Paragraph 22 of the report itself states that  his error lay in not keeping in mind that a petition  was pending for conversion to the N.D.P.S. Act to  conclude that he committed a grave error in law  by granting bail in a case of allegation of  recovery of Ganja and a case under the N.D.P.S.  Act.  It has to be kept in mind that even in the  original allegation it was “Ganja like substance”  and not that it was ganja”

In     Re:     Charge     III:   

“In so far as charge No.3 is concerned, we have  absolutely no hesitation in holding that the  petitioner acted in terms of his statutory powers  under Section 437(1) proviso Cr.P.C. which  makes an exception in favour of women.  The  women accused was granted bail after 15 days of  custody.  She was not named and there was no  recovery from her in an allegation of luggage  lifting on the platform.  If the male co accused  had been granted bail after seven months of  custody, the distinction to us being too apparent,  can it be said that the exercise of discretion to  grant bail to a women  in exercise of powers  under the Code of Criminal Procedure amounted  to conduct unbecoming of a judicial officer and a  gross misconduct only because she had  

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surrendered beyond time observed by the High  Court.”

On the first respondent’s general reputation, the High  

Court thus observed:

“We have examined the judicial records of the  officer.  In a case of grant of bail for extraneous  consideration, there may not be direct and  tangible evidence available, therefore  impressions have to be gathered from the  surrounding circumstances.  We find it difficult to  arrive at any such conclusion against the  petitioner.  However, in order to fortify our  thinking, we also proceed to examine his annual  confidential report more particularly with regard  to the column for judicial reputation for honesty  and integrity.  The consistent remarks are that  “his reputation is good”, “yes”, “judicial  reputation good”, “yes”.”

Hence the present appeal by the High Court. The State of  

Bihar and its two functionaries have been impleaded as  

respondent nos.2 to 4 respectively.

6.Mr. Pravin H. Parekh, learned senior counsel appearing  

for the appellant, submitted that the case of first  

respondent having been examined first by the Standing  

Committee, constituted by the Chief Justice and then  

approved by the Full Court after due deliberations, the  

Division Bench of the High Court ought to have refrained  

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from interfering with the order of punishment, particularly  

when the question of malafides on the part of the Full  

Court was not raised by the first respondent. It was argued  

that the Division Bench has misdirected itself in examining  

the findings of the enquiry officer as if it was sitting in  

appeal and substituted its own findings and opinion  

thereon, which is beyond the purview of judicial review  

under Article 226 of the Constitution.  In support, reliance  

was placed on the decision of this Court in B.C.  

Chaturvedi Vs. Union of India & Ors.1, wherein it was  

held that where the findings of the disciplinary or  

appellate authority are based on some evidence, the court  

cannot re-appreciate the evidence and substitute them  

with its own findings. It was stressed that the judicial  

service not being a service in the sense of an  

employment, as it is commonly understood; as the judicial  

officers exercise sovereign judicial function; the standard  

principles of judicial review of an administrative action  

cannot be applied for examining the conduct of a judicial  

officer.  

1 (1995) 6 SCC 749

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7.Per Contra, Mr. Subhro Sanyal, learned counsel  

appearing on behalf of the first respondent, supporting the  

impugned judgment submitted that the charges framed  

against the first respondent included those cases wherein  

the judicial discretion vested in a judicial officer had been  

exercised and  the exercise of such power by the first  

respondent could not be said to be an act tantamounting  

to judicial indiscipline or misconduct. It was submitted that  

in the absence of any adverse comments in the Annual  

Confidential Reports (“ACR”), the High Court was justified  

in setting aside the order of punishment of dismissal of the  

first respondent from service.

8.Having considered the matter in the light of the entire  

material placed before us by the learned counsel,  

including the personal file of the first respondent and the  

settled position of law on the point, we are of the opinion  

that the Division Bench exceeded its jurisdiction by  

interfering with the unanimous decision of the High Court  

on the administrative side.

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9.Article 235 of the Constitution of India not only vests  

total and absolute control over the subordinate courts in  

the High Courts but also enjoins a constitutional duty upon  

them to keep a constant vigil on the day to day  

functioning of these courts. There is no gainsaying that  

while it is imperative for the High Court to protect honest  

and upright judicial officers against motivated and  

concocted allegations, it is equally necessary for the High  

Court not to ignore or condone any dishonest deed on the  

part of any judicial officer.  It needs little emphasis that  

the subordinate judiciary is the kingpin in the hierarchical  

system of administration of justice.  It is the trial judge,  

who comes in contact with the litigant during the day to  

day proceedings in the court and, therefore, a heavy  

responsibility lies on him to build a solemn unpolluted  

atmosphere in the dispensation of justice which is an  

essential and inevitable feature in a civilized democratic  

society.  In High Court of Judicature at Bombay Vs.  

Shashikant S. Patil & Anr.2, highlighting a marked and  

significant difference between a judicial service and other  

2 (2000) 1 SCC 416

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services, speaking for a bench of three Judges, K.T.  

Thomas, J.  observed as follows:

“23. The Judges, at whatever level they may be,  represent the State and its authority, unlike the  bureaucracy or the members of the other service.  Judicial service is not merely an employment nor  the Judges merely employees. They exercise  sovereign judicial power.  They are holders of  public offices of great trust and responsibility. If a  judicial officer “tips the scales of justice its rippling  effect would be disastrous and deleterious”. A  dishonest judicial personage is an oxymoron.”

In short, it is the constitutional mandate that every High  

Court must ensure that the subordinate judiciary functions  

within its domain and administers justice according to law,  

uninfluenced by any extraneous considerations.  The  

members of the subordinate judiciary are not only under  

the control but also under the care and custody of the  

High Court.  Undoubtedly, all the Judges of the High Court,  

collectively and individually, share that responsibility.  

10.Bearing in mind the scope of Article 235 of the  

Constitution, we may now advert to the facts at hand. As  

aforesaid, according to the report of the enquiry officer  

only charges nos.II and III, as extracted above, stood  

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proved against respondent no.1.  It is manifest that in  

both cases, the charge is related to the grant of bail by  

respondent no.1. While it is true and relevant to note that  

‘grant of bail’ is an exercise of judicial discretion vested in  

a judicial officer to be exercised depending on the facts  

and circumstances before him, yet it is equally important  

that exercise of that discretion must be judicious having  

regard to all relevant facts and circumstances and not as a  

matter of course.  In the instant case, the findings of the  

enquiry officer in respect of the two charges were:

(i) In     Re:     Charge     No.     II   - That respondent no.1  

granted bail to the accused persons in a case  

falling under the ambit of the N.D.P.S. Act. The  

recovery of ganja of any quantity falls within the  

purview of the N.D.P.S. Act triable by a Special  

Court. As a result, no sooner than 4th December  

1999, when an application was filed by the  

prosecution before respondent no.1 to add certain  

provisions of the N.D.P.S. Act in that particular  

case, he was divested of the jurisdiction to deal  

with the case and thus, ought to have transferred  

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the same to a court of competent jurisdiction,  

which was not done. It is pertinent to note here  

that in the reply to the show cause notice issued  

to him, the first respondent acquiesced that he  

was aware of the application filed to bring the case  

within the purview of the N.D.P.S. Act.  However,  

he still chose to entertain the bail application of  

the second accused on 8th December, 1999, which  

clearly implies that he voluntarily exercised his  

discretion in granting bail in a case which was in  

the realm of the N.D.P.S. Act and wherein he  

lacked jurisdiction to deal with the matter.

(ii) In     Re     :     Charge     No.     III   - That the first respondent  

granted bail to Tara Devi alias Haseena Khatoon,  

who was a member of a gang of lifters engaged in  

railway thefts. Admittedly, anticipatory bail  

application preferred by her was rejected by the  

Sessions Judge, Begusarai and was dismissed as  

withdrawn by the High Court vide order dated 30th  

April, 1999, with an observation that if the accused  

surrenders within four weeks, her bail application  

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would be considered on its own merit.  It is  

pertinent to note that on 6th March, 1999, she was  

declared an absconder and a permanent warrant  

of her arrest was also issued by respondent no.1  

himself. However, when she was arrested by the  

police in connection with another case (being  

Barauni Rail P.S. Case No. 51/2000) she was  

granted bail by respondent no.1, on the ground  

that being a woman she was entitled to the benefit  

of the exception under Proviso to Section 437(1) of  

the Code of Criminal Procedure, 1973. It is  

therefore clear that respondent no.1, failed to take  

into consideration the fact that accused was a  

proclaimed absconder, had disobeyed the  

direction of the High Court and had failed to  

surrender herself within the time frame granted to  

her.   

11.According to the Division Bench, both the orders by the  

first respondent being purely discretionary in terms of his  

statutory powers, did not warrant any disciplinary action  

against him on the ground of judicial indiscretion or  

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misconduct.  We are constrained to observe that the  

Division Bench has failed to bear in mind the parameters  

laid down in a catena of decisions of this Court while  

dealing with the collective decision of the Full Court on the  

administrative side.  It is evident that the Division Bench  

dealt with the matter as if it was exercising appellate  

powers over the decision of a subordinate court, granting  

or refusing bail, and in the process, overstepped its  

jurisdiction under Article 226 of the Constitution.

12.It is trite that the scope of judicial review, under Article  

226 of the Constitution, of an order of punishment passed  

in departmental proceedings, is extremely limited. While  

exercising such jurisdiction, interference with the decision  

of the departmental authorities is permitted, if such  

authority has held the proceedings in violation of the  

principles of natural justice or in violation of statutory  

regulations prescribing the mode of such enquiry or if the  

decision of the authority is vitiated by consideration  

extraneous to the evidence on the merits of the case, or if  

the conclusion reached by the authority, on the face of it, is  

wholly arbitrary or capricious that no reasonable person  

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could have arrived at such a conclusion, or grounds very  

similar to the above. (See: Shashikant S. Patil & Anr.  

(supra)).

13.Explaining the scope of jurisdiction under Article 226 of  

the Constitution, in State of Andhra Pradesh Vs. S. Sree  

Rama Rao3, this Court made the following observations:  

“The High Court is not constituted in a proceeding  under Article 226 of the Constitution a court of  appeal over the decision of the authorities holding  a departmental enquiry against a public servant: it  is concerned to determine whether the enquiry is  held by an authority competent in that behalf, and  according to the procedure prescribed in that  behalf, and whether the rules of natural justice are  not violated. Where there is some evidence, which  the authority entrusted with the duty to hold the  enquiry has accepted and which evidence may  reasonably support the conclusion that the  delinquent officer is guilty of the charge, it is not  the function of the High Court in a petition for a  writ under Article 226 to review the evidence and  to arrive at an independent finding on the  evidence.”

14.Elaborating on the scope of judicial review of an  

assessment of the conduct of a judicial officer by a  

Committee, approved by the Full Court, in Syed T.A.  

3 (1964) 3 SCR 25

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Naqshbandi & Ors. Vs. State of Jammu & Kashmir &  

Ors.4 this Court noted as follows:  

“As has often been reiterated by this Court, judicial  review is permissible only to the extent of finding  whether the process in reaching the decision has  been observed correctly and not the decision  itself, as such. Critical or independent analysis or  appraisal of the materials by the courts exercising  powers of judicial review unlike the case of an  appellate court, would neither be permissible nor  conducive to the interests of either the officers  concerned or the system and institutions of  administration of justice with which we are  concerned in this case, by going into the  correctness as such of ACRs or the assessment  made by the Committee and approval accorded by  the Full Court of the High Court.”

15.In  Rajendra Singh Verma (Dead) Through LRs. &  

Ors. Vs. Lieutenant Governor (NCT of Delhi) & Ors.5,  

reiterating the principle laid down in Shashikant S. Patil  

& Anr. (supra), this Court observed as follows:  

“In case where the Full Court of the High Court  recommends compulsory retirement of an officer,  the High Court on the judicial side has to exercise  great caution and circumspection in setting aside  that order because it is a complement of all the  Judges of the High Court who go into the question  and it is possible that in all cases evidence would  not be forthcoming about integrity doubtful of a  judicial officer.”  

4 (2003) 9 SCC 592 5 (2011) 10 SCC 1

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It was further observed that:  

“If that authority bona fide forms an opinion that  the integrity of a particular officer is doubtful, the  correctness of that opinion cannot be challenged  before courts. When such a constitutional function  is exercised on the administrative side of the High  Court, any judicial review thereon should be made  only with great care and circumspection and it  must be confined strictly to the parameters set by  this Court in several reported decisions. When the  appropriate authority forms bona fide opinion that  compulsory retirement of a judicial officer is in  public interest, the writ court under Article 226 or  this Court under Article 32 would not interfere with  the order.”

16.In the present case, the recommendation of the  

Standing Committee to dismiss the first respondent from  

service was based on the findings in the enquiry report  

submitted by the enquiry officer pursuant to the  

departmental enquiry; his reply to the show cause notice;  

his ACR and other materials placed before it. The  

recommendation of the Standing Committee was  

approved and ratified by the Full Court.  There is nothing  

on record to even remotely suggest that the evaluation  

made, firstly by the Standing Committee and then by the  

Full Court, was so arbitrary, capricious or so irrational so  

as to shock the conscience of the Division Bench to justify  

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its interference with the unanimous opinion of the Full  

Court.  As regards the observation of the Division Bench  

on the reputation of the first respondent based on his  

ACRs, it would suffice to note that apart from the fact that  

an ACR does not necessarily project the overall profile of a  

judicial officer, the entire personal file of the respondent  

was before the Full Court when a conscious unanimous  

decision was taken to award the punishment of his  

dismissal from service.  It is also well settled that in cases  

of such assessment, evaluation and formulation of  

opinion, a vast range of multiple factors play a vital and  

important role and no single factor should be allowed to  

be blown out of proportion either to decry or deify issues  

to be resolved or claims sought to be considered or  

asserted.  In the very nature of such things, it would be  

difficult, rather almost impossible to subject such an  

exercise undertaken by the Full Court, to judicial review,  

save and except in an extra-ordinary case when the court  

is convinced that some exceptional thing which ought not  

to have taken place has really happened and not merely  

because there could be another possible view or there is  

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some grievance with the exercise undertaken by the  

Committee/Full Court. [(See: Syed T.A. Naqshbandi  

(supra)].

17.Having regard to the material on record, it cannot be  

said that the evaluation of the conduct of the first  

respondent by the Standing Committee and the Full Court  

was so arbitrary, capricious or irrational that it warranted  

interference by the Division Bench.  Thus, the inevitable  

conclusion is that the Division Bench clearly exceeded its  

jurisdiction by interfering with the decision of the Full  

Court.  

18.However, before parting with the judgment, we deem it  

necessary to make a mention about the recording of the  

ACRs of judicial officers.  We feel that the present system of  

recording the ACRs leaves much to be desired and needs to  

be revamped.  Experience has shown that it is deficient in  

several ways, being not comprehensive enough to truly  

reflect the level of work, conduct and performance of each  

individual on one hand and unable to check subjectivity on  

the other.  This undoubtedly breeds discontent in a section  

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of the judicial service besides eroding proper and effective  

superintendence and control of the High Court over  

subordinate judiciary.  The process of evaluation of a  

judicial officer is intended to contain a balanced information  

about his performance during the entire evaluation period,  

but it has been noticed that many a times, the ACRs are  

recorded casually in a hurry after a long lapse of time (in  

some cases even after the expiry of one year from the  

period to which it relates), indicating only the grading in the  

final column.  It needs no elaboration that such hurried  

assessment cannot but, be either on the basis of the  

assessment/grading of the preceding year(s) or on personal  

subjective views of the Inspecting Judge(s), which is unfair  

to the judicial officer.  Undoubtedly, ACRs play a vital and  

significant role in the assessment, evaluation and  

formulation of opinion on the profile of a judicial officer,  

particularly, in matters relating to disciplinary action  

against a judicial officer.  The ACRs of such officer hold  

supreme importance in ascertaining his conduct, and  

therefore, the same have to be reported carefully with due  

diligence and caution.  We feel that there is an urgent need  

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for reforms on this subject, not only to bring about  

uniformity but also to infuse objectivity and standardisation.  

19.In Bishwanath Prasad Singh Vs. State of Bihar &  

Ors.6 and High Court of Punjab & Haryana, Through  

R.G. Vs. Ishwar Chand Jain & Anr.7, highlighting the  

importance of ACRs, this Court had observed that the  

power to make such entries, which have the potential for  

shaping the future career of a subordinate officer, casts an  

obligation on the High Courts to keep a watch and vigil over  

the performance of the members of the subordinate  

judiciary. This Court also stressed on the need for the  

assessment to be made as an ongoing process continued  

round the year and the record to be made in an objective  

manner.  We are constrained to note that these  

observations have not yet engaged the attention of most of  

the High Courts in the country.

20.In the final analysis, for the aforesaid reasons, we  

allow the appeal, set aside the impugned judgment of the  

Division Bench and uphold the validity of Notification  

6 (2001) 2 SCC 305 7 (1999) 4 SCC 579

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dated 19th June 2006, dismissing the first respondent from  

judicial service.  There will however, be no order as to  

costs.   

………………………………….J. (D.K. JAIN)

..……….. ……………………….J. (ANIL R. DAVE)

NEW DELHI; MAY 11, 2012. ARS

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