High Court should not initiate disciplinary proceedings against judicial officer merely because he passed a wrong order: Supreme Court

The Supreme Court on Tuesday held that a wrong order or action does not warrant starting disciplinary proceedings by High Court against judicial officers [Abhay Jain vs The High Court of Judicature of Rajasthan and Anr]..A Bench of Justices Uday Umesh Lalit and Vineet Saran held that a judicial officer must be intimated by superior authorities, the High Court in this case, about his/ her performance so that they can improve in future."Merely because a wrong order has been passed by the appellant or the action taken by him could have been different, this does not warrant initiation of disciplinary proceedings against the judicial officer," the apex court said.In this regard, the Court quoted from the judgment of Ishwar Chand Jain v. High Court of Punjab and Haryana and ors, which stated,"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.” .On the respondent's contention that adverse performance reviews warranted the dismissal from service, the Bench observed,“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.”.The appellant was a judicial officer selected for the post of Additional District Judge in 2013, and was on probation for two years. In 2015, he was appointed Sessions Judge in the Anti-Corruption Department (ACD), Bharatpur. During his posting, he passed a bail order that formed the basis of the present appeal..In that bail application, the pleas of three accused arrested under provisions of Prevention of Corruption Act for taking bribes of ₹5 lakh and ₹10 lakh were initially dismissed by the appellant's predecessor in office and after that, chargesheet came to be filed. After the filing of the chargesheet, the appellant took charge as the Sessions Judge (ACD).Several bail applications were filed by the accused in the case before the High Court of Rajasthan that were rejected. One of the accused filed a second bail application before the appellant, during the adjournment of which the other two accused were granted bail by the High Court.The remaining accused filed a fresh bail application stating that prosecution sanction had not been granted, which the appellant considered while granting bail. This was even as that accused's bail plea came up for hearing and was dismissed by the Rajasthan High Court, which the appellant was not aware of at the time of hearing. The Chief Justice of Rajasthan High Court called for an explanation from the appellant. In his response, the appellant admitted that the fact of dismissal of the bail by the Rajasthan High Court had come to his notice from the memo of the second bail application while he was dictating the bail order. However, since the order of the Rajasthan High Court rejecting bail was not produced before him, he had thought that there was definitely a change in circumstances as the period of the custody of the accused was nearing four months and in the absence of prosecution sanction, especially when it could not be known as to when such sanction would be granted, the trial court 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 was stated that the appellant should have abstained from granting bail to the accused as there was no material or substantial change in the facts. The Enquiry Judge rejected the appellant's preliminary objections without any personal hearing and in a Full-Court meeting decided to discharge the appellant from service even as the proceedings were pending. .Aggrieved, the appellant filed a petition before the Rajasthan High Court. The High Court dismissed the petition, observing that,“Although, there was no written complaint against the petitioner with regard to grant of bail to the accused but there must have been some oral complaint against the petitioner which resulted in seeking his explanation by the High Court with regard to grant of bail by him to the accused ... The High Court in its wisdom thought of dispensing with the services of the petitioner by passing a simpliciter order without proceeding with the inquiry.”This led to the present appeal before the top court. Senior Counsel PS Patwalia appearing for the appellant argued that the discharge order was not based upon “unsatisfactory performance” as is the requirement under Rule 45 and 46 of the Rajasthan Judicial Service Rules, but was instead base on the fact that an enquiry was initiated against him. .It was submitted that the discharge order was punitive in nature and in violation of Article 311(2) of the Constitution. The appellant submitted that the three complaints filed against the appellant could have not been the basis of his discharge because despite the complaints, he was promoted to the post of District Judge in a Labour Court, and two of the three complaints relate to 2014..On the other hand, Senior Counsel Vijay Hansaria appearing for the respondents submitted that the High Court was "entitled to say that it would not continue an employee against whom allegations are made, the truth of which the employer is not interested to ascertain.”.The Bench held that High Court erred in holding that the discharge order of the appellant was a simpliciter order and not punitive in nature.“In spite of observing that the order of discharge had been passed on account of inquiry initiated against the appellant, the High Court failed to provide any reasoning as to how the allegation of misconduct pertaining to the bail order was not the foundation of the order of discharge,” the Supreme Court said..It further observed that the discharge of the appellant, clearly showed that no adverse remarks were made against the appellant except in relation to the grant of bail on April 27, 2015. The Court further noted that the Annual Confidential Report (ACR) of 2013 contained the comment 'very good' and mentioned that the integrity of the appellant was never in doubt. Similarly, the ACR for the year 2014(Part-I) recorded the comment 'very good' for the appellant and also provided him with an integrity certificate.The respondents relied on the ACR from 2015 that recorded the remark that “integrity of the officer is doubtful. In my overall assessment, I rate the officer average.” The top court said, the ACR itself carried a comment that read “discharged from service” and the ACR for 2015 was filed and submitted in 2016 whereas the appellant’s discharge was recommended in 2015 itself. Further, the ACRs were not communicated to the appellant within reasonable time..With regard to non-communication of ACRs to the appellant within reasonable time, the top court held that the same would be arbitrary as held by the Supreme Court in its 1978 judgment in Maneka Gandhi vs Union of India [(1978) 1 SCC 248].The apex court further noted that the appellant is covered by the judgments of the top court in Shamsher Singh v. State of Punjab and State of Bihar v. Gopi Kishore Prasad, wherein the Supreme Court had held that when a person on probation is terminated after an enquiry into his alleged misconduct, it would amount to punishment because it puts a stigma on his competence and thus affect his future career..In the present case, the Bench stated that the appellant was not given an opportunity to improve and there was no intimation to him about his performance being unsatisfactory. This requirement of giving an opportunity of improvement to the appellant has been stressed by the Supreme Court in many cases, the judgment noted. .The top court also said that there was no formal complaint against the appellant and the charges filed against him were vague in nature and that absolutely no details were provided regarding the allegation of passing the bail order being motivated by extraneous considerations..“The fact that the two other co- accused had already been enlarged on bail was a valid reason for granting bail to accused K.K. Jalia. If the High Court was to initiate disciplinary proceedings based on a judicial order, there should have been strong grounds to suspect appellant’s bona fides and the order itself should have been actuated by malice, bias or illegality. This is clearly not the case in the present matter. The appellant was competent and well within his right to grant bail to the accused in discharge of his judicial functions,” the Supreme Court said.The Bench thus concluded that while appellant may have been guilty of negligence towards not carefully going through the case file, the same cannot be treated as 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 Bench emphasised. .Consequently, the appeal was allowed and the discharge order was quashed. The appellant was directed to be reinstated with all consequential benefits including continuity of service and seniority, but would be entitled to only 50 per cent back-wages, payable within four months. [Read Judgment]