Madhya Pradesh High Court turns down relief to the Judge implicated in apparant bias in Bail Grants

CAUSE TITLE:

Nirbhay Singh Suliya v. The State of Madhya Pradesh & Others

DATE OF ORDER:

25 July 2024

JUDGE(S):

Hon’ble Shri Sanjeev Sachdeva (Acting Chief Justice) and Hon’ble Justice Shri Vinay Saraf

PARTIES:

Petitioner: Nirbhay Singh Suliya
Respondent: The State of Madhya Pradesh and Others

SUBJECT:

Having been aggrieved by the order of punishment dated 02.09.2014 passed, the Petitioner, who was working on the post of Additional District Judge preferred the present writ petition. 09. 2014 and in the departmental enquiry which was conducted by the High Court of M. P. Jabalpur, the Petitioner was dismissed from the service. The Petitioner has also challenged the legality and validity of an order promoted by the State of M. P in appeal on 17. 03. 2016 in which the preferred appeal by the Petitioner was dismissed.

IMPORTANT PROVISIONS:

M.P. Excise Act

• Section 59-A – Security for appearance in cas e of arrests without warrant.
• Section 34(2) – Penalty for unlawful manufacture, transport, possession, sale etc.
• Section 49(A) – Penalty for import etc. of liquor unfit for human consumption or for altering or attempting to alter denatured spirituous preparation.

Constitution of India, 1950

• Article 226 – Power of High Courts to issue certain writs

BRIEF FACTS:

• The Petitioner/delinquent was appointed as Civil Judge, Class II on 31-10-1987.
• Subsequently, the Petitioner was promoted as Chief Judicial Magistrate and thereafter was promoted on a selection basis as member of M.P. Higher Judicial Service at entry level in May, 2011 and was posted as Additional District & Sessions Judge, Khargon.
• In one year 2011 one Jaipal Mehta filed a complaint against the Petitioner on the grounds that Petitioner has performed corrupt practices with the cooperation of co-accused Stenographer namely Anil Joshi particularly in the case of deciding bail applications in relation of the offences registered under Section 34(2) of the M. P. Excise Act.
• Given the level of the allegations; a show cause notice was issued to the Petitioner on 13. 05. 2013 under sub-rule (4) of rule 14 of the M. P. Civil Services (Classification, Control & appeal) rules, 1966 (hereinafter referred to as ‘rules 1966’) informing the Petitioner that the High Court proposes to take disciplinary action against him.
• Besides the show cause notice, the article of charges, statements of imputations of misconduct in support of the article of charges, list of documents and list of witnesses were also annexed. Petitioner has denied all the above-said accusations and he has filed his reply to the show cause notice on 29. 05. 2013, which he denied all the corruptions charges.
• Nevertheless, the dissatisfaction with the reply provided by the Petitioner was justified by the facts. Shri Abhinand Kumar Jain, District & Sessions Judge, Khandwa was assigned to act as inquiring authority by the disciplinary authority where the powers under were invoked as per Clause (9) of sub rule (5) Rule 14 of Rules, 1966 
• On the similar lines, Chief Judicial Magistrate, Mandleshwar was appointed as Presenting Officer to present the disciplinary case in the enlisted proceedings. While in the course of the enquiries conducted an affidavit was recorded from the witness no. 1 Gendalal Chouhan from the department and the delinquent was given an opportunity to counter question him.
• Delinquent has also called one witness in defence namely; Shri K. P. Tripathi and Defendant’s Advocate was given an opportunity to cross examine the Presenting Officer’s witness. With this, the opportunity of hearing was provided to the delinquent and in turn, he submitted a written response The inquiring authority then prepared the enquiry report on 31. 12. 2013 and filed the same to the Principal Registrar (Inspection and Vigilance), High Court of M. P. , Jabalpur before the enquiry officer of the instant case held that the charge no. 1 of the submitted imputation was proved.
• In this case the inquiring authority issued the date to the respondent for compliance as well as considered the findings recorded and decided to issue a show cause notice to the delinquent employee as to why he should not be punished for the charges proved against him and it was in 2014
• The delinquent was also served with the show cause notice which was a copy of the enquiry report and was asked as to why the enquiry report be not accepted and why he should not be punished since the charges levelled against him were proven. The Petitioner also complied to the show cause notice and filed his reply.

QUESTIONS RAISED:

• Whether the order passed by the State of M.P. was valid and legal?

ARGUMENTS ADVANCED BY THE APPELLANT

1. The The complaint was filed by one Jaipal Mehta and allegedly no opportunity was given to the examine the complainant during the departmental euquiry and neither any witness was examined by the complainant to prove corruption charges leveled by him therefore it can be conclude that the allegations made against the respondents were not proved at all and the enquiry officer has prepared this report on mere assumptions and presumed facts.
2. The allegations constitutes the following: corrupt or oblique motive and for some extraneous consideration while being an Additional Sessions Judge, the petitioner allowed four bail applications and ignored Section 59-A of the M. P. Excise Act and hence given benefits to the applicants despite of knowing that the seized quantity of the liquor was more than 50 bulk litre and refused bail in 14 similar bail applications on the instructions that bail cannot be granted as the seized quantity.
3. Thus, in favour of some applicants the petitioner has extended the benefits and at the same time has adopted the double standards while passing the order deciding the bail applications of the accused persons involved in offences under section 34(2) and 49 (A) of the M. P. Excise Act.
4. Following the lead of Butterworths’ Encyclopaedia of Forms & Precedents it is argued on behalf of the petitioner that the said allegations could not be proved because at the most the bail orders may be treated as an erroneous exercise of the judicial powers and cannot be treated as misconduct at all.
5. Allegations made against the Petitioner is he while disposing of the bail applications of some of the applicants, he failed to consider section 59-A of the M. P. Excise Act, 1915 In fact, if one has to read the order bare, it appears that the prosecution was given adequate chance to resist the bail petitions and the provisions of section were not, thereby, overlooked.
6. The major penalty of removal from service was given only on the basis of infarction that has drawn against the petitioner without any sufficient material to justify such inferences as there was no any evidence on record to support the allegations of corruption.
7. This issue is clear from the conclusion of the enquiry that the Petitioner’s action was aimed at not adhering to the provisions of Section 59-A of the M. P. Excise Act,without any evidence or material and with a prejudicial mind-set.

ARGUMENTS ADVANCED BY THE RESPONDENT

• The The specified action was not taken only on the basis of the complaint of Jaipal Mehta and the matter was proceeded with after being satisfied that delinquent was indulged in adopting double standard at the time of deciding bail applications in respect of offences registered under Section 34 (2) of the M.P. Excise Act therefore, non examination of Jaipal Mehta during enquiry is of no consequence.
• Execution Clerk of court of delinquent was examined as the departmental witness and he supplied as well as proved 19 bail orders passed by the delinquent and the factum of passing the said orders by the delinquent was not in dispute therefore no other witness needs to be produced during enquiry as the allegations were proved. In submissions for the respondents, their lawyer brought to the attention of the court that the proper procedure was followed during enquiry and the enquiry was done fairly and impartially.
• Every chance was given to delinquent and after getting reply/written arguments, the enquiry report was prepared with available material and evidence and therefore, the order of removal cannot be interfered. The respondents’ counsel argued that since there is no illegality in arriving at the decision and the process was not violative of principles of natural justice or any other violation that would be prejudicial to the petitioner, the High Court cannot interfere under Article 226 of the Constitution of India.

ANALYSIS BY THE COURT:

• At the outset, the Court observed that there can be no controversy that the Petitioner was holding the post of Additional District and Sessions Judge and the allegations brought against the Petitioner was for maintaining duality in the approach to grant bail amidst the applications arising from cases pertaining to Section 34 (2) and 49 (A) of M. P. Excise Act, 1950.
• The above allegations in respect of some other offences also were levelled with the contemporaneous use of ‘force’ and ‘coercion’, but since the Charge no. 2 was not found proved, the same is not the subject matter of this petition.
• Nevertheless, specific cases were studied by the inquiring authority meticulously and we do not intend to introduce those orders while referring to some of the cases relied on by the inquiring authority. It may be therefore stated that in some of the cases involving large amounts where the Courts granted bail in a rather liberal fashion without reference to the said provisions, the spirit of the provisions have been given a go-by and in most of the cases, the same approach has not been followed which would mean an application of the provisions.
• Thus, after critically analysing the enquiry report and the finding of the inquiring authority in the premises of the above ingredients, we are in a better position to note that there are allegations against the Petitioner to the effect that he had granted bail to some of the applicants without considering the provisions Section 59-A of M. P. Excise Act and in other cases, after applying the said provision and the conclusion of enquiry that the allegation was proved, the impugned order is fully justified on legal reasoning.
• However, one may not have direct proof to substantiate the corrupt or improper motive but from the mere reading of the bail orders it can be seen that the judicial officer has done something that cannot be approved in any way. It would also be seen that the objectionable inference of improper motive and extra consideration was correctly made against the Petitioner. It will also be useful to recall that the principle while exercising the powers of judicial review, the High Court should not have imposed a different penalty, as has been done by this judgment, where the Court has set a different penalty which bare legally superior to the one that has been imposed by the appropriate legislature.
• Likewise the principles of hearsay and other rules of evidence do not apply when a departmental enquiry is instituted and the only legal dictum that needs to be complied with is that the evidence in inquiries based on allegations against delinquent officer must be such that a reasonable person upon receiving such evidence can arrive at a finding recorded by the enquiry officer.
• In this regard, the law is well settled that in the exercise of the jurisdictions of judicial review the Court ought not to interfere with finding of fact arrived at in a departmental enquiry save and except where the findings arrived at are malafide or perverse. Court jurisdiction in the context of the judicial review is somewhat restricted.
• When the requirement of material in the present case is viewed it can be seen that the petitioner was occupying a position of Additional Sessions Judge and when one is in such a post one has certain duties to discharge and one of those duties is the manner he or she conducts himself or herself. He had the responsibility of presiding over the affairs of the bail applications in accordance with the legal requirements.
• The Court went on to grant the application for bail to some individuals while relying on the pronouncement of the High Court while at the same time, refused to grant bail to others without regard to those entities.
• Thus, no question of violation of principles of natural justice or error is made out of the procedure adopted in the enquiry in the present case. As there is no procedural illegality, irregularity in the conduct of departmental enquiary, in the considered opinion of this Court, no interference is called for and after going through the materials produced and in the over all view of law as it stands, no ground is made out to interfere with the order of punishment/removal dated 02. 09. 2014 and the order of rejection of appeal on 17, it therefore became impossible for the Appellant to renew the lease agreement for the shop so as to continue carrying out his business and accordingly, the writ petition is dismissed.