Tuesday, May 28, 2024




ART 311(2) CONST

Abhay Jain vs High Court of Judicature for Rajasthan, SC 2022

FACTS – The appellant was by an order dated, appointed as Sessions Judge, Anti- Corruption Department (ACD), Bharatpur. 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.

In a case under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, three accused 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 predecessor of the appellant dismissed the bail of K. K. Jalia and the bail of Alimuddin was also dismissed. Charge sheet was filed against all the three accused. It was at this stage, that the appellant was appointed as Sessions Judge, Anti-Corruption Department.

Then a 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. A 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) and then, bail was also granted to Alimuddin by the Rajasthan High Court.

On the second bail application of K. K. Jalia, the Court heard the matter of bail of K. K. Jalia and granted bail to him by a detailed order. It appears from the record that the bail order in the case of K. K. Jalia was called for by the Rajasthan High Court itself and the appellant was directed by the Rajasthan High Court to submit his comments regarding the said order. The appellant submitted his response/comments on stating therein 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. 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 and it was stated by the appellant in his reply 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 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).

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. Additionally, it was alleged that the appellant had already rejected the second bail application of the co-accused/Alimuddin by observing therein that the matter is grave in nature and that there was no change in circumstances after the dismissal of his first bail application. It was also alleged that the appellant passed the bail order with some ulterior or oblique motives and for extraneous considerations.

The appellant submitted his preliminary objections to the above allegations, which came to be rejected by the Enquiry Judge without affording the opportunity of personal hearing to the appellant.

A Full Court meeting was convened wherein, based on the recommendation submitted by the Higher Judicial Committee, it was decided to discharge the appellant. Notably, the appellant was discharged despite the pendency of the enquiry proceedings initiated against him. department reserved the right to reopen the same. The High Court also closed the disciplinary proceedings initiated against the appellant.

CAUSE – Aggrieved by the order of the Full Court meeting, the appellant filed a Writ Petition before the Rajasthan High Court.

ARGUMENTSMr. P.S. Patwalia, learned Senior Counsel for the Appellant, has submitted that the impugned discharge order of the High Court was not based upon “unsatisfactory performance” of the appellant, as is the requirement under Rule 45 and 46 of the RJS Rules, but rather the foundation of the said order lies in the enquiry initiated against the appellant.

Therefore, it has been submitted, that the order of discharge/termination is punitive in nature and is in violation of Article 311(2) of the Constitution of India. With respect to the facts pertaining to the bail order, the learned Senior Counsel has urged that if the appellant had any illegal motive, he could have granted bail to the accused K.K. Jalia itself when the prosecution sanction was not brought on record against the accused. However, the appellant listed the matter so as to give an opportunity to obtain the prosecution sanction against the accused and a reply could be filed by the State.

Inspite of the opportunity granted for obtaining the sanction and filing the reply, the learned counsel contends that no reply was filed by the State.

Per contra, Mr. Vijay Hansaria, learned Senior Counsel appearing for the Respondent has submitted that the issue which arises for consideration is “Whether the action of non-confirmation of the Appellant is in accordance with Rules 45 and 46 of the Rajasthan Judicial Service Rules, 2010?” It has been contented by the learned Senior Counsel that a perusal of the recommendation of the Higher Judicial Committee of 5 Judges, the decision of the Full Court and the Order of Discharge, would demonstrate that it was a discharge simpliciter, as it was neither based on any single act of impropriety nor an individual act formed the foundation of the said discharge. Hence, it is contented, that the discharge order in the present case is incapable of being interpreted as attaching any stigma to the appellant, especially in light of the fact that the appellant is not visited with any civil consequences.

ISSUE – Whether the appellant would be entitled to the protection of Article 311(2) of the Constitution or not.

DECISION – The SC held 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.

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. Even if appellant’s act is considered to be negligent, it cannot be treated as “misconduct”. Accordingly, the Appeal is Allowed and the impugned order of the High Court is set aside and the discharge order is quashed.

Leave a Reply

Your email address will not be published. Required fields are marked *

error: Content is protected !!