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How Judges Can Escape From Departmental Enquiry After Passing Wrong Order And Suppressing Materials To Favour Party.....



गलती करके भोले बन जाओ और पार्टी परेशान होती रहे ......

Allahabad High Court

Sagar Kumar vs District Judge, Moradabad And 2 ... on 28 February, 2020
Bench: Ajay Bhanot

Court No. - 3 
Case :- MATTERS UNDER ARTICLE 227 No. - 9146 of 2019
Petitioner :- Sagar Kumar
Respondent :- District Judge, Moradabad And 2 Others
Counsel for Petitioner :- Lalit Kumar
Counsel for Respondent :- Ashish Mishra,Anil Babu,T. A. Khan

Hon'ble Ajay Bhanot,J.

1. The petitioner has sought the following relief in this writ petition:

"(i) Issue writ order or direction to decide the complaint/application dated 30.10.2019 pending for consideration before this Hon'ble High Court and an inquiry at administrative level may be conducted and appropriate action as per law may be taken against Nahid Sultana Civil Judge (Sr. Div./F.T.C.) Moradabad."

2. On 07.12.2019 the following order was passed:

"Sri H.K. Yadav, learned counsel holding brief of Sri Anil Babu, learned Special Counsel appearing for High Court and the District Courts may study the matter and inform the Court as to whether the respondent no.3 had the jurisdiction to decide the execution application or not.

Learned counsel for the petitioner may may implead the plaintiffs as respondents in this petition during the course of the day.

Place this petition on 9.12.2019 as fresh."

3. Sri Anil Babu, learned counsel for the High Court submits that the Fast Track Court had the jurisdiction to decide the execution application.

4. Heard Sri Pankaj Tripathi, learned counsel holding brief of Sri Lalit Kumar, learned counsel for the petitioner and Sri T.A. Khan, learned counsel for respondent no. 3.

5. The complaint dated 30.10.2019 submitted on behalf of the petitioner through the counsel relates to orders passed by a judicial officer (respondent no. 3) in her judicial capacity. The petitioner has adequate remedies under the law in case he is aggrieved by the aforesaid orders. The complaint does not disclose any act of misconduct so as to warrant interference by this court under Article 227 of the Constitution of India. There is no evidence in the record to support the charge of any misconduct. In the event a complaint does not establish a prima facie act of misconduct, no departmental enquiry can be ordered against a judicial officer. In fact a perusal of the complaint shows that this is a frivolous petition, by a disgruntled litigant against a judge who passed adverse orders against him. The action of the petitioner constitutes an abuse of the process of court.

6. Judges in a democratic polity governed by the rule of law, discharge most critical functions when they implement the laws and dispense justice. Faithful implementation of the law and impartial administration of justice is possible only if those charged with execution of these functions, are free and fearless, independent and unbiased. These virtues of fearless enquiry, independent decision making and rendering impartial judgments, can flourish in the judiciary only if the environment fosters and supports such qualities. Absent these values or an institutional failure to nurture and fortify these values, could seriously undermine the justice delivery system and impair public faith in the judiciary.

7. The qualities of fearless and independent decision making which are the hallmarks of a vibrant judiciary were emphasized by the Hon'ble Supreme Court in Krishna Prasad Verma (D) through L.Rs. Vs State of Bihar and others, reported at 2019 (10) SCC 640:

"1. In a country, which follows the Rule of Law, independence of the judiciary is sacrosanct. There can be no Rule of Law, there can be no democracy unless there is a strong, fearless and independent judiciary. This independence and fearlessness is not only expected at the level of the Superior Courts but also from the District Judiciary.

2. Most litigants only come in contact with the District Judiciary. They cannot afford to come to the High Court or the Supreme Court. For them the last word is the word of the Magistrate or at best the Sessions Judge. Therefore, it is equally important, if not more important, that the judiciary at the District level and at the Taluka level is absolutely honest, fearless and free from any pressure and is able to decide cases only on the basis of the facts on file, uninfluenced by any pressure from any quarters whatsoever."

8. The importance of the subordinate judiciary created under the Constitution to secure justice to all citizens and thus achieve the foremost goal set out in the Preamble needs no articulation. The subordinate judiciary is the first trier of facts and evidence, and is indispensable to implement the fundamental constitutional vision of the rule of law and dispensation of justice. Most litigants have the first interface with the judicial system at the level of the district judgeship. To retain faith of the citizens in the judiciary, it is imperative that judicial officers are transparent in their functioning and accountable for their conduct. A judge of the subordinate judiciary has to always remain accountable, but can never be made vulnerable. In the former the judicial system will be fortified, while in the latter it will be jeopardised. This court notices that many unscrupulous litigants or lawyers try to pressurize the judges of the district judgeships, with threats of frivolous complaints, and the reality of endless prosecution of such false complaints. Such litigants and counsels seek to create an environment of blackmail and force the judges to toe their line. No threat could be more grave to the independence of the judiciary, than the judges being vulnerable to false complaints triggering endless enquiries. Such complaints impair the functioning of the judge and distract her energies from the job at hand to issues which have no relevance. Harassment and humiliation resulting from false complaints setting off interminable enquiries, deliver a fatal blow to the morale of the judge concerned and does no credit to the judicial system.

9. Complaints which do not disclose a prima facie act of misconduct, cannot cause a departmental enquiry to be conducted against a judicial officer. A roving enquiry into vague allegations against a judicial officer cannot be countenanced in law. Establishing a prima facie act of misconduct by a judicial officer, is the minimum legal threshold to be reached before a prayer for holding a departmental enquiry can be considered.

10. Clearly red lines have to be drawn. The higher courts have a responsibility in this regard and cannot shirk it in any manner. The courts have to quickly distinguish between a genuine complaint by a bonafide complainant from a frivolous complaint by a professional blackmailer. Complaints against judicial officers are not sport of the complainant, and the courts cannot be made their play field. It is equally critical to separate an act of misconduct completely, from a bonafide error of judgment in law or fact in the discharge of judicial functions. This exercise has to be done at the earliest and the nuisance has to be nipped in the bud, before it festers into a sore. Wrong orders can be rectified by the higher courts, but false complaints create a long drawn cycle of harassment of an honest officer, which cannot be compensated in any manner. Independent and unbiased judicial decision making will thrive, once the law firmly sets its face against false and frivolous complaints against judicial officers.

11. The role of the High Court as a guardian of the subordinate judgeships, and the duty of the High Court to protect the judges of the subordinate courts from false complaints, was thus stated by the Hon'ble Supreme Court in Krishna Prasad Verma (supra):

"3. Article 235 of the Constitution of India vests control of the subordinate courts upon the High Courts. The High Courts exercise disciplinary powers over the subordinate courts. In a series of judgments, this Court has held that the High Courts are also the protectors and guardians of the Judges falling within their administrative control. Time and time again, this Court has laid down the criteria on which actions should be taken against judicial officers. Repeatedly, this Court has cautioned the High Courts that action should not be taken against judicial officers only because wrong orders are passed. To err is human and not one of us, who has held judicial office, can claim that we have never passed a wrong order.

4. No doubt, there has to be zero tolerance for corruption and if there are allegations of corruption, misconduct or of acts unbecoming of a judicial officer, these must be dealt with strictly. However, if wrong orders are passed that should not lead to disciplinary action unless there is evidence that the wrong orders have been passed for extraneous reasons and not because of the reasons on the file."

12. Elucidating the importance of insulating judicial officers against false complaints, the Hon'ble Supreme Court in Ishwar Chand Jain Vs High Court of Punjab & Haryana reported at 1988 (3) SCC 370 held so:

"14. Under the Constitution the High Court has control over the subordinate judiciary. While exercising that control it is under a constitutional obligation to guide and protect judicial officers. An honest strict judicial officer is likely to have adversaries in the mofussil courts. If complaints are entertained on trifling matters relating to judicial orders which may have been upheld by the High Court on the judicial side no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for rule of law. If judicial officers are under constant threat of complaint and enquiry on trifling matters and if High Court encourages anonymous complaints to hold the field the subordinate judiciary will not be able to administer justice in an independent and honest manner. It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants. Having regard to facts and circumstances of the instant case we have no doubt in our mind that the resolution passed by the Bar Association against the appellant was wholly unjustified and the complaints made by Shri Mehlawat and others were motivated which did not deserve any credit. Even the vigilance Judge after holding enquiry did not record any finding that the appellant was guilty of any corrupt motive or that he had not acted judicially. All that was said against him was that he had acted improperly in granting adjournments."

13. A similar view was taken by the Hon'ble Supreme Court in P.C. Joshi Vs State of U.P. and others reported at 2001 (6) SCC 491:

"7. In the present case, though elaborate enquiry has been conducted by the enquiry officer, there is hardly any material worth the name forthcoming except to scrutinize each one of the orders made by the appellant on the judicial side to arrive at a different conclusion. That there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone. The enquiry officer has not found any other material, which would reflect on his reputation or integrity or good faith or devotion to duty or that he has been actuated by any corrupt motive. At best, he may say that the view taken by the appellant is not proper or correct and not attribute any motive to him which is for extraneous consideration that he had acted in that manner. If in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly. Indeed the words of caution are given in K.K. Dhawan case [Union of India v. K.K. Dhawan, (1993) 2 SCC 56 : 1993 SCC (L&S) 325] and A.N. Saxena case [Union of India v. A.N. Saxena, (1992) 3 SCC 124 : 1992 SCC (L&S) 861] that merely because the order is wrong or the action taken could have been different does not warrant initiation of disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate disciplinary proceedings against the appellant in this case."

14. The importance of protecting judicial officers from disciplinary action because of wrong judgments passed by them lay at the heart of the concerns of the Hon'ble Supreme Court in Ramesh Chander Singh Vs High Court of Allahabad and another, reported at 2007 (4) SCC 247 when it held:

"12. This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings against officers of the subordinate judiciary merely because the judgments/orders passed by them are wrong. The appellate and revisional courts have been established and given powers to set aside such orders. The higher courts after hearing the appeal may modify or set aside erroneous judgments of the lower courts. While taking disciplinary action based on judicial orders, the High Court must take extra care and caution.

17. In Zunjarrao Bhikaji Nagarkar v. Union of India [Zunjarrao Bhikaji Nagarkar v.Union of India, (1999) 7 SCC 409 : 1999 SCC (L&S) 1299] this Court held that wrong exercise of jurisdiction by a quasi-judicial authority or mistake of law or wrong interpretation of law cannot be the basis for initiating disciplinary proceeding. Of course, if the judicial officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Article 235 of the Constitution may exercise its supervisory jurisdiction. Nevertheless, under such circumstances it should be kept in mind that the Judges at all levels have to administer justice without fear or favour. Fearlessness and maintenance of judicial independence are very essential for an efficacious judicial system. Making adverse comments against subordinate judicial officers and subjecting them to severe disciplinary proceedings would ultimately harm the judicial system at the grassroot level."

15. Judicial officers can discharge their judicial functions without fear or favour, affection or ill will only if a conducive environment is built around them. For this it is essential to protect judicial officers, from the menace of false and frivolous complaints by disgruntled litigants or motivated lawyers or interested parties. No judicial officer can discharge her judicial functions in accord with her obligations to the constitution and the laws, if she is under constant threat of roving enquiries on the foot of vague allegations. There is a noticeable proclivity to make such vague and frivolous allegations against judicial officers, by litigants and even lawyers who are dissatisfied by adverse verdicts. Irresponsible institution or unfettered prosecution of false and frivolous complaints, impedes the effective functioning of the judicial system, and undermines the administration of justice.

16. Such complaints paired with litigation against the officers pose a systemic threat to the independence of the judiciary. Judicial officers have to be secured against false and malafide complaints by creating a system of deterrence and penalties. To curb this evil of false and frivolous complaints effectively, it is imperative to create a deterrent regime which may include imposition of costs on the complainants. This is apart from other processess known to law, like drawing contempt proceedings. In the absence of such deterrent regime false and frivolous complaints would be made with impunity, the complainants would harbor a sense of immunity and the judges would become perpetually vulnerable.

17. In the facts of this case as found earlier in the preceding part of the judgment, the complaints against the judicial officer do not disclose any act of misconduct. Also as stated earlier, in case he is aggrieved by the orders, the petitioner can take recourse to remedies as per law. Equally the malafide intent of the petitioner who seems to be a disgruntled litigant stands established. The complaint has put the learned judge to untold harassment, which has interfered in the faithful discharge of her judicial duties. Her reputation was sought to be tarnished. She has been forced to privately engage a counsel to defend her reputation. In these facts this court feels that interest of justice would be served by imposing costs quantified at Rs. 10,000/- upon the petitioner. The costs shall be recovered by the Chief Judicial Magistrate, Moradabad as arrears of land revenue and deposited with the High Court Legal Services Committee, Allahabad. A copy of this order shall be provided to the Chief Judicial Magistrate, Moradabad.

18. The petition is dismissed.

Order Date :- 28.2.2020 Pravin    

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