Read Judgment: Abhay Jain V. The High Court of Judicature for Rajasthan And Anr. 

Pankaj Bajpai

New Delhi, March 21, 2022: Finding that there was no intimation to Abhay Jain (appellant) about his performance being unsatisfactory and hence he was deprived of his opportunity to improve as a judicial officer, the Supreme Court while concurring with the view of this Court in P.C. Joshi vs State of U.P. , (2001) 6 SCC 491, has reiterated that merely because a wrong order has been passed by the Judicial officer or the action taken by him could have been different, this does not warrant initiation of disciplinary proceedings against him.

A Division Bench of Justice Vineet Saran and Justice Uday Umesh Lalit held that the accused K.K. Jalia had the right to file bail application at any stage when undergoing imprisonment as an under-trial prisoner, and 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, which is clearly not the case in the present matter. 

Going by the background of the case, a notification inviting applications for District Judge Examination, 2013 was issued in 2011 and the selection was to be made from amongst the candidates of Advocates’ Quota under the Rajasthan Judicial Services Rules, 2010. In the said examination, Abhay Jain (appellant) stood first and he was appointed to the post of Additional District Judge under Rule 43 of the RJS Rules r/w 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. Later, in 2013, the appellant was posted as an Additional District & Sessions Judge No.2, Bharatpur. Then in 2014, the appellant was posted as Presiding Officer, Labour and Industrial Tribunal, Bharatpur, and thereafter, he was appointed as Sessions Judge, Anti- Corruption Department (ACD), Bharatpur in 2015.

Thereafter, in a case u/s 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. 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 non-official also alleged to be involved in the case. The first and second bail application of the accused was rejected by the appellant. Later, the Rajasthan High Court granted bail to the co-accused Irfan (who was a private person) and Alimuddin. 

The appellant stated that the fact of dismissal of bail by the Rajasthan High Court was neither argued by the Counsel nor the copy of the order was filed or produced, even though time was granted to the prosecution to file the reply to the bail application. The appellant admitted that the fact of dismissal of the bail plea by the Rajasthan High Court came to his notice from the memo of the second bail application while he was dictating the bail order. It was stated by the appellant that since the order of the Rajasthan High Court 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 also that 48 days had passed 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. 

After considering the explanation of the appellant, the Chief Justice of the Rajasthan High Court directed that departmental enquiry under Rule 16 of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (CCA Rules, 1958) be initiated against the appellant for acts amounting to misconduct and violation of Rules 3 and 4 of the Rajasthan Civil Services (Conduct Rules), 1971. The allegations levelled against the appellant included, inter alia, that he should have desisted from granting bail to the accused K.K. Jalia as there had been no material or substantial change in the facts and circumstances of the case after the rejection of his earlier bail applications by the appellant’s predecessors. 

The appellant submitted his preliminary objections to the allegations which came to be rejected by the Enquiry Judge without affording the opportunity of personal hearing. Later, in 2016, a Full Court meeting was convened wherein, based on the recommendation submitted by the Higher Judicial Committee, it was decided to discharge the appellant. Thereafter, the Rajasthan High Court held that though charges had been framed against the petitioner and Inquiry Judge had been nominated but the Inquiry Judge had not recorded any evidence nor had given any finding on charges framed against the petitioner and thus, the inquiry Judge had not reached to a logical conclusion. 

After considering the submissions, the Top Court noted that 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 material placed before the Higher Judicial Committee consisting of Bi-Annual Reports/ Special Reports and the ACRs, which recommended the discharge of the appellant, clearly shows that no adverse remarks were made against the appellant except in relation to the grant of bail and his integrity was never doubted, added the Court. 

Speaking for the Bench, Justice Saran observed that 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, the termination was clearly by way of punishment and, hence, the appellant would be entitled to the protection of Article 311(2) of the Constitution.

Thus, the adverse comments in the ACR for the year 2015 could not have been the basis on which the appellant was discharged from service and there was no material on record to showcase unsatisfactory performance of the appellant in terms of requirement under Rule 45 and 46 of the RJS Rules, 2010, added the Bench. 

Justice Saran stated that there appeared to be no infirmity in the appellant’s record and the entire recommendation of discharge by the Higher Judicial Committee was based upon the passing of the bail order, and the appellant was never granted an opportunity to improve and there was no intimation to him about his performance being unsatisfactory. 

In essence, the appellant honestly admitted in his comment that he had come across the reference of the dismissal of the first bail application whilst dictating the bail order but exercised his discretion in granting bail to the accused given the uncertainty and delay in prosecution sanction and the intervening grant of bail to the two other co-accused by the High Court, even when the prosecution sanction had been granted for one of the co-accused, added the Bench. 

The Top Court therefore concluded that the appellant could not be said to be at fault in granting bail to an accused since the bail order was based on the non-grant of prosecution sanction and no progress in relation to the same being brought on record.

Accordingly, the Top Court allowed the appeal while concluding that his negligence could not be treated as ‘misconduct’, and directed that while the appellant be reinstated with all consequential benefits including continuity of service and seniority, but he would be entitled to be paid only 50% back wages, which may be paid within a period of four months from today.

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