No disciplinary action against judicial officers for merely passing a wrong order; mere negligence is not misconduct: SC

While coming out stoutly in support of a judicial officer, we saw how as recently as on March 15, 2022 the Apex Court in a learned, laudable, landmark and latest judgment titled Abhay Jain vs The High Court of Judicature for Rajasthan and Anr. in 2022 LiveLaw (SC) 284 and Civil Appeal No.2029 OF 2022 [Arising Out Of Special Leave Petition [C] NO.6107 OF 2020] while reinstating a judicial officer observed quite clearly, cogently and convincingly that mere negligence cannot be treated as misconduct to terminate services of a judicial officer. The Bench comprising of Justice Uday Umesh Lalit and Justice Vineet Saran observed that disciplinary proceedings against a judicial officer is not warranted merely because a wrong order has been passed by him/her or the action taken by him could have been different. The Bench clearly held that, “Negligence cannot be treated to be misconduct – Relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer- Every judicial officer is likely to commit mistake of some kind or the other in passing orders in the initial stage of his service, which a mature judicial officer would not do. However, if the orders are passed without there being any corrupt motive, the same should be over-looked by the High Court and proper guidance should be provided to him. (Para 69, 54).” The Bench also made it clear that, “When the Government had, on enquiry, come to the conclusion, rightly or wrongly, that the appellant was unsuitable for the post he held on probation, this was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution. (Para 50).”

To start with, this brief, brilliant, bold and balanced judgment authored by Justice Vineet Saran for a Bench of Apex Court comprising of himself and Justice Uday Umesh Lalit sets the ball rolling by first and foremost putting forth in para 2 that, “The appellant, who joined as a judicial officer in 2013, having been discharged from service in the year 2016, filed a Writ Petition in the Rajasthan High Court, which was dismissed by the impugned judgment dated 21.10.2019 passed by a Division Bench of the High Court. Aggrieved by the same, this appeal has been filed by way of this Special Leave Petition.”

To put things in perspective, the Bench then envisages in para 3 that, “Brief facts relevant for the purpose of the present case are that a notification inviting applications for District Judge Examination, 2013 was issued on 19.07.2011. The selection was to be made from amongst the candidates of Advocates’ Quota under the Rajasthan Judicial Services Rules, 2010 (for short ‘RJS Rules’). In the said examination, the result of which was declared on 25.05.2013, the appellant stood first. On 15.07.2013, the appellant was appointed to the post of Additional District Judge under Rule 43 of the RJS Rules read with Article 233(1) of the Constitution of India and as per the Rule 44 of RJS Rules, the appellant was to be on probation for a period of 2 years. By an order dated 16.07.2013, the appellant was posted as an Additional District & Sessions Judge No.2, Bharatpur, on which post he joined on 18.07.2013. Then on 05.05.2014, the appellant was posted as Presiding Officer, Labour and Industrial Tribunal, Bharatpur, on which post he joined on 06.05.2014. He was thereafter, by an order dated 24.02.2015, appointed as Sessions Judge, AntiCorruption Department (ACD), Bharatpur, on which post he joined on 25.02.2015.”

Truth be told, the Bench then reveals in para 4 that, “It was during his posting as Sessions Judge, Anti-Corruption Department, Bharatpur, that a bail was granted by the appellant, which is the genesis of the action which has been taken against the appellant.”

While elaborating on the facts, the Bench then discloses in para 5 that, “In a case under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, three accused namely K.K.Jalia, Alimuddin and Irfan were arrested on 29.12.2014. The said K. K. Jalia, who was the Chairman of the Municipal Corporation, was alleged to have taken a bribe of Rs.5 Lakhs; Alimuddin, who was a Police Constable, was alleged to have taken a bribe of Rs.10 Lakhs; and Irfan, was a nonofficial also alleged to be involved in the case. On 08.01.2015, the predecessor of the appellant dismissed the bail of K. K. Jalia and the bail of Alimuddin was also dismissed on 03.02.2015. The Investigation Officer had sent a letter to the concerned department seeking sanction of prosecution against the said two accused, K. K. Jalia and Alimuddin on 18.02.2015. Charge sheet was filed against all the three accused on 23.02.2015. It was at this stage, on 25.02.2015, that the appellant was appointed as Sessions Judge, Anti-Corruption Department.”

Furthermore, the Bench then added in para 6 that, “Then on 04.03.2015, the second bail application of the accused Alimuddin was rejected by the appellant. The bail application of K. K. Jalia was rejected by the Rajasthan High Court on 11.03.2015. On 17.03.2015, the second bail application was filed by K. K. Jalia before the appellant. It is noteworthy that the Rajasthan High Court granted bail to the co-accused Irfan (who was a private person) on 16.04.2015, and then on 27.04.2015, bail was also granted to Alimuddin by the Rajasthan High Court.”

Adding more to it, the Bench then observes in para 7 that, “On the second bail application of K. K. Jalia filed on 17.03.2015, the Court fixed 20.03.2015 along with the main file. Then on 18.03.2015, on the main file the case was fixed for 31.03.2015 for filing of sanction of prosecution of K. K. Jalia and till then the judicial custody of remand was extended in the bail matter. On 20.03.2015, the bail matter was adjourned for 31.03.2015. On 31.03.2015, the bail matter was adjourned for 13.04.2015 and in the main file, 13.04.2015 was fixed for filing of prosecution sanction against K. K. Jalia and for arguments on cognizance. On 13.04.2015, on which date the appellant was on leave, the bail matter was again adjourned by the officiating Presiding Officer for 16.04.2015, and on the main file it was noted that no sanction against K. K. Jalia was received and since the appellant was on leave, the case was fixed for 27.04.2015 for filing of sanction of prosecution against K. K. Jalia. On 16.04.2015, a fresh application of bail was filed by the accused K. K. Jalia stating that he was arrested on 27.12.2014 and charge sheet was filed on 23.02.2015, but till date no sanction of prosecution as required under Section 19 of the Prevention of Corruption Act, 1988, had been given, and that the custody of the accused K. K. Jalia was illegal as the accused could not be detained for an indefinite period. On the said date the appellant, in his order, observed that from 23.02.2015 till date i.e. 16.04.2015, there was no document on the file which would indicate that any progress has been made with regard to grant or refusal of sanction, and accordingly, it was directed that such a progress report be filed with regard to the efforts of the Anti-Corruption Department for grant of sanction be submitted on 27.04.2015, and time was also granted to file reply to the bail application by the next date i.e. 27.04.2015. On 17.04.2015, the matter was placed with regard to the attestation of bail of Irfan, who had been granted bail by the Rajasthan High Court on 16.04.2015.”

Going ahead, the Bench then mentions in para 8 that, “On 27.04.2015, on the main file, the investigation officer sought time for filing of sanction against K. K. Jalia and 08.05.2015 was fixed and till then, the judicial custody and remand of K. K. Jalia and Alimuddin was extended. In the bail application of K. K. Jalia, which was also fixed for 27.04.2015 and was taken separately, two letters had been filed. One letter dated 24.04.2015 mentioned that a file for sanction of prosecution of K. K. Jalia was submitted to the State Government, and the other letter dated 27.04.2015, which was addressed to the appellant, mentioned that a meeting to discuss whether the prosecution sanction should be granted or not was held on 23.03.2015, but no decision had been reached, and thus, the file had been sent back to the State Government to take a decision in that regard and the same was still pending. It was also pointed out that the other co-accused Alimuddin (Police Constable) had been granted bail by the Rajasthan High Court on the same date i.e. 27.04.2015. The appellant heard the matter of bail of K. K. Jalia and granted bail to him by a detailed order. On 28.04.2015, the matter for attestation of bail of Alimuddin was taken on the main file as the Rajasthan High Court granted him bail on 27.04.2015. The sanction of prosecution of K. K. Jalia was also received on the main file on 28.04.2015.”

On the face of it, the Bench then states in para 9 that, “It appears from the record that the bail order in the case of K. K. Jalia was called for by the Rajasthan High Court on 27.04.2015 itself and on 02.05.2015 the appellant was directed by the Rajasthan High Court to submit his comments regarding the said order dated 27.04.2015. The appellant submitted his response/comments on 12.05.2015 stating therein that the fact of dismissal of bail by the Rajasthan High Court on 11.03.2015 was neither argued by the Counsel nor the copy of the order was filed or produced, even though time was granted to the prosecution on 16.04.2015 to file the reply to the bail application. In the said reply, it was admitted by the appellant that the fact of dismissal of the bail by the Rajasthan High Court came to his notice from the memo of the second bail application while he was dictating the bail order dated 27.04.2015, and it was stated by the appellant in his reply that since the order of the Rajasthan High Court dated 11.03.2015 was not produced before him, he had thought that there was definitely a change in circumstances from 11.03.2015 as the period of the custody of the accused was nearing four months and also that 48 days had passed from 11.03.2015 to 27.04.2015 and in the absence of prosecution sanction, especially when it could not be known as to when such sanction would be granted, the trial could not start. It was also stated by the appellant that other two co-accused, whose bail application had been rejected by him earlier, had already been granted bail by the Rajasthan High Court. After considering, the explanation of the appellant, the Chief Justice of the Rajasthan High Court directed to initiate departmental enquiry under Rule 16 of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short ‘CCA Rules, 1958).”

It cannot be lost on us that the Bench then observes in para 47 that, “Moreover, it is not disputed that the ACRs were not communicated to him within reasonable time. In this context, a 3-Judge Bench of this Court in Sukhdev Singh vs Union of India [(2013) 9 SCC 566] has held that:

“In our opinion, the view taken in Dev Dutt [Dev Dutt vs Union of India] that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR-poor, fair, average, good or very good-must be communicated to him/her within a reasonable period.” (emphasis supplied)

Hence, in light of the above, the non-communication of the ACRs to the appellant in the present case is arbitrary and as has been held by this court in Maneka Gandhi vs Union of India [(1978) 1 SCC 248], such arbitrariness violated Article 14 of the Constitution of India.””

Quite forthrightly, the Bench then holds in para 50 that, “The present case of the appellant is squarely covered by the abovementioned Constitution Bench judgements of this Court. Since the Government had, on enquiry, come to the conclusion, rightly or wrongly, that the appellant was unsuitable for the post he held on probation, this was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution. Moreover, in the facts and circumstances of the present case, the substance of the termination order reveals that the discharge was by way of punishment. Hence, the question that whether the action of non-confirmation of the appellant is in accordance with Rules 45 and 46 of the RJS Rules is answered in the Negative.”

Be it noted, the Bench then clearly holds in para 69 that, “In light of the above judicial pronouncements, we hold that the appellant may have been guilty of negligence in the sense that he did not carefully go through the case file and did not take notice of the order of the High Court which was on his file. This negligence cannot be treated to be misconduct. Moreover, the enquiry officer virtually sat as a court of appeal picking holes in the order granting bail, even when he could not find any extraneous reason for the grant of the bail order. Notably, in the present case, there was not a string of continuous illegal orders that have been alleged to be passed for extraneous considerations. The present case revolves only around a single bail order, and that too was passed with competent jurisdiction. As has been rightly held by this Court in Sadhna Chaudhary (supra), mere suspicion cannot constitute “misconduct”. Any ‘probability’ of misconduct needs to be supported with oral or documentary material, and this requirement has not been fulfilled in the present case. These observations assume importance in light of the specific fact that there was no allegation of illegal gratification against the present appellant. As has been rightly held by this Court, such relief-oriented judicial approaches cannot by themselves be grounds to cast aspersions on the honesty and integrity of an officer.”

It is also worth noting that the Bench then points out in para 70 that, “Additionally, the High Court in the impugned order has erroneously stated that there must have been some oral complaint which resulted in the explanation being sought by the Respondent. This, it is held, was based on conjectures and is in stark contravention to the proposition laid down in the above referred judgements, especially given the fact that the High Court had itself recorded that there was no written complaint against the appellant. Lastly, reliance placed by the High Court in the impugned order on Director Aryabhatta research Institute of Observational Sciences (supra) is misconceived as the facts of the said case are distinguishable on facts since in the said case, the enquiry was only a preliminary enquiry prior to the initiation of a formal inquiry and furthermore, there were many letters of the management regarding unsatisfactory performance, of which the delinquent officer was intimated in advance.”

Most significantly, the Bench then states what forms the cornerstone of this notable judgment in para 71 that, “To conclude, we are of the firm view that in the present case there was no material to showcase unsatisfactory performance of the appellant in terms of requirement under Rule 45 and 46 of the RJS Rules, 2010. Moreover, the appellant’s discharge was not simpliciter, as claimed by the respondent. The non-communication of the ACRs to the appellant has been proved to be arbitrary and since the respondent choose to hold an enquiry into appellant’s alleged misconduct, the termination of his service is by way of punishment because it puts a stigma on his competence and thus affects his future career. In such a case, the appellant would be entitled to the protection of Article 311(2) of the Constitution. Moreover, the adverse comments in the ACR for the year 2015 could not have been the basis on which the appellant was discharged from service. The appellant was never granted an opportunity to improve and there was no intimation to him about his performance being unsatisfactory. Importantly, no verifiable complaint was filed against the appellant that could form the basis of the disciplinary proceeding against him. After perusing all the relevant record, we hold that the appellant was competent to pass the bail order dated 27.04.2015 and that the Respondent has not been able to prove the presence of any extraneous consideration or ulterior motive on the part of the appellant. It should also be highlighted here that neither the bail order dated 27.04.2015 was ever challenged by the State before any Court of law, nor was any complaint received against the appellant regarding the said bail order. This is not the case where there are strong grounds to suspect the appellant’s bona fides. Even if appellant’s act is considered to be negligent, it cannot be treated as “misconduct”.”

Finally, the Bench then concludes by holding in para 72 that, “Accordingly, the Appeal is Allowed and the impugned order of the High Court dated 21.10.2019 is set aside and the discharge order dated 27.01.2016 is quashed. Keeping in view that the appellant has not worked as judicial officer after he was discharged, we direct that while the appellant be reinstated with all consequential benefits including continuity of service and seniority, but will be entitled to be paid only 50% backwages, which may be paid within a period of four months from today.”

In sum, the Apex Court has drawn the right, rational and robust conclusion for which it must be applauded. The Apex Court has very rightly held that mere negligence cannot be termed misconduct. Justice UU Lalit and Justice Vineet Saran deserves all the praise under the sun for doing justice with a Judge himself who clearly became a victim in this case even though he was never tainted with any allegation of corruption of any kind. All kudos to both Justice Lalit and Justice Saran for doing so and for not getting straightaway swayed by what the Rajasthan High Court held! Of course, all High Courts must adhere to what the Apex Court has held in this case so clearly, cogently and convincingly!

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