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2017 DIGILAW 1315 (GAU)

Jamuna Gogoi Phukan v. Gauhati High Court

2017-09-21

PARAN KUMAR PHUKAN, UJJAL BHUYAN

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JUDGMENT AND ORDER : Ujjal Bhuyan, J. 1. Heard Mr. K. N. Choudhury, learned Senior counsel assisted by Mr. S. Dutta, learned counsel for the petitioner; Mr. N. Goswami, learned Govt. Advocate, Assam for respondent No.1 and Mr. U.K. Nair, learned Senior counsel assisted by Mr. M.P. Sharma, learned counsel for respondent No. 2, i.e., Gauhati High Court. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of resolution of the Administrative Committee of the Gauhati High Court dated 23.03.2011, resolution of the Full Court of Gauhati High Court dated 28.05.2011 and the Government notification dated 09.06.2011 issued by the Legal Remembrancer and Secretary to the Govt. of Assam, Judicial Department imposing the penalty of compulsory retirement on the petitioner, a Judicial Officer belonging to the Assam Judicial Service. 3. As would be evident from the above, in this proceeding, we are called upon to adjudicate the legality and correctness of the decision of the Administrative Committee and the Full Court in imposing the penalty of compulsory retirement on a Judicial Officer. 4. Before we proceed further, it would be apposite to remind ourselves about the duties of a Judge on the administrative side as well as on the judicial side. A High Court Judge not only discharges judicial functions but also discharges administrative functions. A decision taken on the administrative side is certainly open to be scrutinized on the judicial side by invoking the power of judicial review. The duties of a Judge on the administrative side vis-a-vis on the judicial side was succinctly delineated by the Supreme Court in the case of Madan Mohan Choudhury v. State of Bihar, (1999) 3 SCC 396 and we feel that it would be most appropriate to extract the relevant portion of the same, which is as under:- "The recommendation of the High Court on the basis of which the appellant, who held the rank of Addl. District & Sessions Judge, was compulsorily retired from service, exhibits the tragic fact that the highest judicial body of the State which abhors anything done contrary to the rule of law or done in a whimsical manner or arbitrarily, can itself act in that manner on the administrative side. District & Sessions Judge, was compulsorily retired from service, exhibits the tragic fact that the highest judicial body of the State which abhors anything done contrary to the rule of law or done in a whimsical manner or arbitrarily, can itself act in that manner on the administrative side. Still, the plea that High Court Judges suffer from "split personality" cannot be accepted for the pleasant fact that though on the administrative side they might have had acted as ordinary bureaucrats, once they don the robes, they forget all their previous associations and connections. The transformation is so complete and real that even though they themselves were part of the decision making process, they quash their own administrative decisions in exercise of their power of judicial review and thus maintain the majesty and independence of the Indian judiciary in which the people have always reposed tremendous faith. In the instant case, however, the order of compulsory retirement dated 2.8.1997 passed by the State Government on the High Court's recommendation has been upheld and it has fallen to our lot, in this appeal, to scrutinise the validity of this order." 5. In the aforesaid judgment of Madan Mohan Chouhury (supra), Supreme Court had aptly remarked that though on the administrative side, High Court Judges might have acted as bureaucrats, once they don the robes, they forget all their previous associations and connections. The transformation is so complete and real that even though they themselves were part of the decision-making process, they quash their own administrative decisions in exercise of their power of judicial review and thus maintain the majesty and independence of the Indian judiciary. 6. Keeping the above in mind, we may now proceed to deal with the case presented by the petitioner. 7. It all started with the presentation of the Annual Confidential Report (ACR) of the petitioner for the year 2005 before the reviewing authority who was the Hon'ble Portfolio Judge. Be it stated that at that point of time, petitioner was serving as Sub-Divisional Judicial Magistrate at Karimganj. The reporting authority, i.e., the District and Sessions Judge, Karimganj graded the petitioner as good in the ACR for the year 2005. In respect of quality of judgments, she was awarded the following marks:- (i) Language - 9, (ii) Factual description - 9, (iii) Application of law points/case laws - 8, (iv) Reasoning/appreciation of evidence - 12. 8. The reporting authority, i.e., the District and Sessions Judge, Karimganj graded the petitioner as good in the ACR for the year 2005. In respect of quality of judgments, she was awarded the following marks:- (i) Language - 9, (ii) Factual description - 9, (iii) Application of law points/case laws - 8, (iv) Reasoning/appreciation of evidence - 12. 8. Regarding integrity of the petitioner, the reporting authority remarked "beyond doubt". In the column relating to general assessment, reporting authority remarked that the petitioner had all the good qualities to become a good officer except that she used to visit her home frequently to meet her children and other family members. In the report of the Registrar (Vigilance), Gauhati High Court dated 09.08.2006, which was part of the said ACR, it was remarked that no complaint was received against the petitioner during the year 2005. When the ACR file was placed before the Hon'ble Portfolio Judge, who was the reviewing authority, Hon'ble Portfolio Judge directed Registrar (Vigilance) on 07.05.2007 as under:- "Please call for the records of cases, which have been disposed of on contest." 9. Thereafter, Registrar (Vigilance) requisitioned a total of 122 numbers of contested case records disposed of during the year 2005 by the petitioner who was in the meanwhile transferred and posted as Sub-Divisional Judicial Magistrate, Darrang at Mangaldoi. All the 122 case records were scrutinized by the Registrar (Vigilance) where after a report was submitted to the Hon'ble Portfolio Judge for Karimganj district on 19.03.2008 pointing out anomalies in 9 cases. Thereafter, Hon'ble Portfolio Judge directed the Registrar (Vigilance) on 20.03.2008 as under:- "Please lay the matter before the Hon'ble Chief Justice for his Lordship's consideration and order." 10. When the matter was placed before the Hon'ble Chief Justice on 09.04.2008, it was directed to be placed before the Administrative Committee. 11. It appears that in the meanwhile petitioner was placed under suspension. 12. When the matter was placed before the Administrative Committee in its meeting held on 14.05.2008, the Administrative Committee resolved to initiate disciplinary proceeding against the petitioner. 13. 11. It appears that in the meanwhile petitioner was placed under suspension. 12. When the matter was placed before the Administrative Committee in its meeting held on 14.05.2008, the Administrative Committee resolved to initiate disciplinary proceeding against the petitioner. 13. Registrar (Vigilance) thereafter issued show-cause notice to the petitioner on 29.08.2008 under Rule 9 of the Assam Services (Discipline and Appeal) Rules, 1964 (1964 Rules) read with Article 311 of the Constitution of India as to why any of the penalties prescribed under Rule 7 of the 1964 Rules should not be inflicted on the petitioner on the 9 charges framed thereunder. The show-cause notice was accompanied by a statement of allegations, list of witnesses and list of documents. At this stage, it would be relevant to briefly sum up the charges framed against the petitioner, which are as under:- "CHARGE-1 That, while working as Sub-Divisional Judicial Magistrate (Sadar) at Karimganj in the year 2005, you disposed Misc. Case No.8/04 under section 125 Cr.PC by order dated 27.4.05, but the judgment was not found available in the record, though the order dated 27.4.05 shows that judgment was pronounced in the open Court. CHARGE-2 That, while working as Sub-Divisional Judicial Magistrate (Sadar) at Karimganj in the year 2005, in GR Case No.498/03, under sections 279/337/427/304A IPC, out of ten witnesses, you examined only one witness, namely, Mofizuddin Choudhury and closed the evidence and delivered the judgment dated 12/12/05 acquitting the accused. CHARGE-3 That, while working as Sub-Divisional Judicial Magistrate (Sadar) at Karimganj in the year 2005, while disposing GR Case No.449/92, under sections 325/323/34 IPC, you discarded the material evidence of the injured and the doctor and also ignored the important evidence of the material witnesses and delivered judgment on 29.10.05, acquitting the accused. CHARGE-4 That, while working as Sub-Divisional Judicial Magistrate (Sadar) at Karimganj in the year 2005, in GR Case No.1221/92 under sections 147/148/149/447/323/324/326 IPC, you ignored the material evidence, i.e., the evidence of injured persons, namely, (1) Shri Abdul Rouf, (2) Sirajuddin, (3) Saifiqul, (4) Foizuddin @ Faziruddin and (5) Shihabuddin, available on record and disposed the case in an illegal manner prejudicial to prosecution acquitting the accused by judgment and order dated 25.8.05. CHARGE-5 That, while working as Sub-Divisional Judicial Magistrate (Sadar) at Karimganj in the year 2005, you disposed GR Case No.494/95 under sections 147/341/324/325 IPC after examining only one witness i.e. the doctor and without examining the material witness, injured Suaib Ali, who received nine injuries out of which three were grievous in nature caused by heavy blunt object and three injuries caused by heavy sharp object and the rest three were caused by sharp pointed object and closed the evidence without assigning adequate reason and delivered judgment acquitting the accused by your order dated 22.09.05. CHARGE-6 That, while working as Sub-Divisional Judicial Magistrate (Sadar) at Karimganj in the year 2005, you disposed GR Case No.1313/99 under section 392 IPC by order dated 23.12.05 by examining only one witness out of eight witnesses inspite of incriminating materials on record without examining the complainant Nizumuddin @ Nizum who identified the sole suspect/accused in TIP held by the Magistrate. CHARGE-7 That, while working as Sub-Divisional Judicial Magistrate (Sadar) at Karimganj in the year 2005, you disposed GR Case No.38/01 under sections 279/338 IPC by examining only two witnesses out of nine and delivered the judgment acquitting the accused by your order dated 26.12.05. CHARGE-8 That, while working as Sub-Divisional Judicial Magistrate (Sadar) at Karimganj in the year 2005, in CR Case No.2413/2000 under sections 448/323/34 IPC, after appearance of the accused persons, the next date was fixed for evidence before charge, though the case is triable as summons case under Chapter XX of the Cr.PC where framing of charge is not necessary. You rejected compromise petition on 12.9.05, although the offence is compoundable and thereafter, pronounced judgment on 23.9.05 acquitting the accused. CHARGE-9 That, while working as Sub-Divisional Judicial Magistrate (Sadar) at Karimganj in the year 2005, you disposed GR Case No.519/01, under section 379 of the IPC after examining two witnesses out of six, closed the evidence and delivered judgment on 23.12.05, acquitting the accused. In the said record, the order framing of charge and the form of charge are also not found." 14. From the above, what is noticeable is that barring Charge No.1, other charges related to improper disposal of cases by confining examination of witnesses to one or two witnesses. As per Charge No.1, judgment delivered was not found available in the record. 15. From the above, what is noticeable is that barring Charge No.1, other charges related to improper disposal of cases by confining examination of witnesses to one or two witnesses. As per Charge No.1, judgment delivered was not found available in the record. 15. Be that as it may, petitioner submitted her detailed show-cause reply on 07.08.2009 denying each of the allegations levelled against her. She stated that she had not committed any misconduct and there was no failure on her part to maintain absolute integrity and devotion to duty. Regarding Charge No.1, she stated that she had delivered the judgment in the open Court; according to her, after pronouncement of judgment, the record did not remain with her but was kept in the custody of the Peshkar. She could not be held accountable for that. Regarding other charges, she pointed out that as the Presiding Judicial Officer, she had decided the cases to the best of her ability and what she thought was just and proper in the facts of each of the cases. 16. It appears that reply submitted by the petitioner was not accepted by the High Court where after it was decided to hold enquiry. Enquiry Officer as well as Presenting Officer were appointed on 13.11.2009 where after enquiry commenced. After conclusion of enquiry, Enquiry Officer submitted his report on 26.02.2010 holding that Charge Nos.1 to 5 and 8 stood proved; Charge Nos.6 and 7 were not proved; and Charge No.9 was partly proved. 17. It further appears that copy of the enquiry report was furnished to the petitioner seeking her response. Petitioner submitted her detailed response on 21.06.2010 contending that finding of the Enquiry Officer was erroneous in respect of those charges which were held to be proved or partly proved. She requested the High Court to drop the proceeding and to exonerate her from all the charges levelled against her. 18. When the matter was placed before the Administrative Committee in its meeting held on 23.03.2011, Administrative Committee recommended imposition of penalty of compulsory retirement and also to place the papers before the Full Court. Thereafter, matter was placed before the Full Court in its meeting held on 28.05.2011. Full Court on a consideration of the entire matter, recommended imposition of penalty of compulsory retirement on the petitioner. 19. Following the same, Legal Remembrancer and Secretary to the Govt. Thereafter, matter was placed before the Full Court in its meeting held on 28.05.2011. Full Court on a consideration of the entire matter, recommended imposition of penalty of compulsory retirement on the petitioner. 19. Following the same, Legal Remembrancer and Secretary to the Govt. of Assam, Judicial Department issued the impugned notification dated 09.06.2011 stating that on the recommendation of the Gauhati High Court, Governor of Assam was pleased to compulsorily retire the petitioner from Government service with effect from the date of issue of the said notification. 20. Appeal preferred by the petitioner proved futile as by order dated 03.01.2012, appellate authority rejected the appeal. 21. Hence, the writ petition. 22. This Court by order dated 30.04.2013 had admitted the writ petition for hearing. 23. Though this case is pending before the Court for more than 4 years now, no affidavit has been filed on behalf of the High Court. 24. Mr. K.N. Choudhury, learned Senior counsel appearing for the petitioner, vehemently argued that the Hon'ble Portfolio Judge had exceeded his jurisdiction on the administrative side by directing requisition of the case records of all the disposed of cases of the petitioner during the year under consideration. Matter was placed before the Hon'ble Portfolio Judge to review the grading and assessment of the petitioner by the reporting authority as the reviewing authority. Instead of doing that, Hon'ble Portfolio Judge directed the Registrar (Vigilance) to requisition all the disposed of cases of the petitioner for the year under consideration and thereafter started a roving and fishing enquiry. There was no vigilance complaint against the petitioner. Therefore, Hon'ble Portfolio Judge ought not to have initiated the process of requisitioning all the disposed of cases of the petitioner for the year under consideration with a view to find fault with the manner of disposal of cases by the petitioner. In the process, Hon'ble Portfolio Judge did not perform the duty of the reviewing authority which was in fact the duty assigned to him. His further submission is that all the orders passed by the petitioner were judicial in character and had attained finality. Those orders were not challenged by any authority, not even by the High Court by exercising its power of superintendence under Article 227 of the Constitution. His further submission is that all the orders passed by the petitioner were judicial in character and had attained finality. Those orders were not challenged by any authority, not even by the High Court by exercising its power of superintendence under Article 227 of the Constitution. Even if it is assumed that the orders passed by the petitioner were not up to the standard or were erroneous, that by itself would not be construed as a misconduct and expose a Judicial Officer to a disciplinary proceeding. He has strenuously taken us to each of the charges to contend that on merit, it cannot be said that there was any misconduct on the part of the petitioner. Therefore, initiation of disciplinary proceeding against the petitioner and the consequential penalty imposed on her are wholly unsustainable in law and are liable to be set aside. In support of his submissions, Mr. Choudhury has placed reliance on the following decisions:- (1979) 2 SCC 286 = Union of India v. J. Ahmed; (2001) 6 SCC 491 = P.C. Joshi v. State of UP; (2007) 4 SCC 247 = Ramesh Chander Singh v. High Court of Allahabad. 25. On the other hand, Mr. Nair, learned Standing Counsel, Gauhati High Court submits that disciplinary authority had applied its due mind to the entire matter and after threadbare examination, it was decided to impose the penalty of compulsory retirement on the petitioner. He submits that an officer who exercised judicial or quasi-judicial powers acting negligently or recklessly could be proceeded against by way of disciplinary action. Mr. Nair has produced the case record in original before us for consideration. In support of his submission, learned Standing Counsel has placed reliance in the case of Union of India v. K.K. Dhawan, (1993) 2 SCC 56 and Union of India v. Duli Chand, (2006) 5 SCC 680 . He has also referred to the decision of the Supreme Court in Rajendra Singh Verma v. Lt. Governor, (2011) 10 SCC 1 . 26. Submissions made by learned counsel for the parties have received the due consideration of the Court. We have also perused the entire materials on record, including the record produced by Mr. Nair. 27. He has also referred to the decision of the Supreme Court in Rajendra Singh Verma v. Lt. Governor, (2011) 10 SCC 1 . 26. Submissions made by learned counsel for the parties have received the due consideration of the Court. We have also perused the entire materials on record, including the record produced by Mr. Nair. 27. Having heard learned counsel for the parties and on due consideration, we are of the view that the decision-making process culminating in the decision to award the penalty of compulsory retirement on the petitioner suffers from serious legal lacunae which we would like to address and highlight hereunder. 28. A perusal of the show-cause notice issued to the petitioner on 29.08.2008 would indicate that it was issued under Rule 9 of the 1964 Rules read with Article 311 of the Constitution of India. We have recently dealt with a case of another Judicial Officer (Basab Bijoy Bhattacharjee v. Gauhati High Court, decided on 14.09.2017). In that case, we had elaborately examined the provisions of Article 311(2) of the Constitution of India as it stands today after the changes brought in by the Constitution (42nd Amendment) Act, 1976. Relevant portion of Article 311(2) of the Constitution, as it stands today, reads as under:- "311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State - (1) *** *** *** (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges: Provided that where it is proposed, after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed: *** *** *** ***" 29. This provision had received the attention of the Supreme Court in Union of India v. Md. Ramjan Khan, (1991) 1 SCC 588 and thereafter by a Constitution Bench of the Supreme Court in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 . This provision had received the attention of the Supreme Court in Union of India v. Md. Ramjan Khan, (1991) 1 SCC 588 and thereafter by a Constitution Bench of the Supreme Court in Managing Director, ECIL v. B. Karunakar, (1993) 4 SCC 727 . Supreme Court has explained that before arriving at a finding holding the concerned employee or officer guilty or otherwise, copy of the enquiry report has to be furnished to him and his response to the enquiry report is required to be considered. However, once he is held guilty, thereafter no fresh notice is required to be issued to the concerned employee or officer on the question of imposition of penalty. In other words, the amendment has done away with the requirement of the second notice to the delinquent on the question of imposition of penalty. In Managing Director, ECIL (supra), Supreme Court held as follows:- "26. The reason why the right to receive the report of the enquiry officer is considered an essential part of the reasonable opportunity at the first stage and also a principle of natural justice is that the findings recorded by the enquiry officer form an important material before the disciplinary authority which along with the evidence is taken into consideration by it to come to its conclusions. It is difficult to say in advance, to what extent the said findings including the punishment, if any, recommended in the report would influence the disciplinary authority while drawing its conclusions. The findings further might have been recorded without considering the relevant evidence on record, or by misconstruing it or unsupported by it. If such a finding is to be one of the documents to be considered by the disciplinary authority, the principles of natural justice require that the employee should have a fair opportunity to meet, explain and controvert it before he is condemned. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. It is negation of the tenets of justice and a denial of fair opportunity to the employee to consider the findings recorded by a third party like the enquiry officer without giving the employee an opportunity to reply to it. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the enquiry officer along with the evidence on record. In the circumstances, the findings of the enquiry officer do constitute an important material before the disciplinary authority which is likely to influence its conclusions. If the enquiry officer were only to record the evidence and forward the same to the disciplinary authority, that would not constitute any additional material before the disciplinary authority of which the delinquent employee has no knowledge. However, when the enquiry officer goes further and records his findings, as stated above, which may or may not be based on the evidence on record or are contrary to the same or in ignorance of it, such findings are an additional material unknown to the employee but are taken into consideration by the disciplinary authority while arriving at its conclusions. Both the dictates of the reasonable opportunity as well as the principles of natural justice, therefore, require that before the disciplinary authority comes to its own conclusions, the delinquent employee should have an opportunity to reply to the enquiry officer's findings. The disciplinary authority is then required to consider the evidence, the report of the enquiry officer and the representation of the employee against it." 30. The decision as to whether the concerned employee or officer departmentally proceeded against is guilty or not has to be of the disciplinary authority. The enquiry report is not final. Stricto senso it is only an opinion of the Enquiry Officer. No doubt, it is a relevant material to be considered by the disciplinary authority while considering the guilt or otherwise of the charged employee or officer but as explained by the Supreme Court, principles of natural justice demands that along with the report of enquiry, response of the charged employee or officer is required to be considered together with the evidence before taking the decision as to the guilt or otherwise of the charged employee or officer. In the recent case of Foyez Uddin Ahmed Laskar v. Gauhati High Court, (2017) 3 GLR 262, this Court had the occasion to examine the aforesaid aspect pertaining to Article 311(2) of the Constitution. After carefully considering various decisions of the Supreme Court, including the two judgments referred to above, this Court has held that before the disciplinary authority comes to its own conclusion whether to accept the enquiry report or not, the charged employee or officer should have an opportunity to reply to the Enquiry Officer's finding. Thereafter, the disciplinary authority is required to consider the evidence on record, report of the Enquiry Officer and representation of the charged employee or officer. It has further been held that view of the Enquiry Officer is not final. Final decision has to be taken by the disciplinary authority. Report of the Enquiry Officer is one of the material documents to be taken into consideration by the disciplinary authority before accepting the guilt or otherwise of the charged employee or officer. It has been held as under:- "22. In other words, the requirement of law is that before a decision is taken by the disciplinary authority whether the enquiry report has to be accepted or not, the delinquent has to be given a chance to make a representation against the report submitted by the Enquiry Officer. After all, report of the Enquiry Officer is one of the material documents to be taken into consideration by the disciplinary authority before accepting the guilt or otherwise of the delinquent. Therefore, as explained in Utpal Rajkonwar (supra), principles of natural justice require that before such decision is taken the delinquent is required to be afforded an opportunity to make his statement by way of representation on such report. Thereafter, it is for the disciplinary authority on the basis of the materials on record, including the enquiry report and the response of the delinquent, to take a decision as to whether the delinquent is guilty or not. Once the disciplinary authority holds the delinquent to be guilty of misconduct and decides to impose penalty, no fresh show cause notice is required to be given to the delinquent on the point of penalty." 31. Question of imposition of penalty will come in or will arise only after the disciplinary authority holds that the charges levelled against the charged employee or officer stood proved. Question of imposition of penalty will come in or will arise only after the disciplinary authority holds that the charges levelled against the charged employee or officer stood proved. In other words, the disciplinary authority must first come to the finding that the charged employee or officer is guilty of the charges. It is only thereafter that the question of imposition of penalty will arise. Having said so, let us examine as to how the Administrative Committee and the Full Court decided this aspect of the matter. 32. Administrative Committee in its meeting held on 23.03.2011 resolved as under:- "The Administrative Committee has considered the reply submitted by Smti Jamuna Gogoi Phukan, Judicial Magistrate, 1st Class, Tihu in respect of the enquiry report dated 26.02.2010 and recommends the imposition of a penalty of compulsory retirement. Papers be placed before the Full Court." 33. Thereafter, Full Court in its meeting held on 28.05.2011 resolved as follows:- "On a consideration of the entire matter, the Full Court recommends that Smti. J. Gogoi Phukan, Judicial Magistrate, 1st Class, Tihu, be imposed the penalty of compulsory retirement." 34. A conjoint reading of the resolutions of the Administrative Committee and of the Full Court would reveal that Administrative Committee had considered the reply submitted by the petitioner in respect of the enquiry report and recommended imposition of the penalty of compulsory retirement. Full Court on a consideration of the entire matter, decided to impose the penalty of compulsory retirement. 35. A careful analysis of both the resolutions would show that there is no finding holding the petitioner guilty of the charges levelled against her. As noted in the earlier part of the judgment, Enquiry Officer in his report had held Charge Nos.1 to 5 and 8 as proved; and Charge No.9 as partly proved. Question is, what is the finding of the disciplinary authority? Nothing is discernible. A view may be taken that since Administrative Committee had recommended imposition of penalty, it is implied or may be presumed that petitioner was held guilty. We are afraid such a view can be taken. In a matter relating to imposition of punishment or award of penalty, be it a criminal proceeding or a disciplinary proceeding, there cannot be any implied holding of guilt either of the accused or of the charged employee or officer. We are afraid such a view can be taken. In a matter relating to imposition of punishment or award of penalty, be it a criminal proceeding or a disciplinary proceeding, there cannot be any implied holding of guilt either of the accused or of the charged employee or officer. Question of penalty will arise only if the charged employee or officer is held guilty of the charges framed against him. The finding of guilt has to be clear and unequivocal. There is no room for any ambiguity or impliedness in such decision-making. 36. In the instant case, as noticed above, there is no specific finding by the Administrative Committee or by the Full Court holding the petitioner guilty of the charges framed against her as per the show-cause notice dated 29.08.2008. On this count itself, impugned decision stands vitiated and becomes legally unsustainable. 37. We have also noticed that the disciplinary proceeding was initiated under the 1964 Rules, more particularly, under Rule 9 thereof. Rule 9 of the 1964 Rules lays down the procedure for imposing penalties specified in Rule 7 which also includes the penalty of compulsory retirement. Sub-Rule (9) is relevant for the purpose of the present case, which is extracted hereunder:- "(9). The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." 38. In the case of Basab Bijoy Bhattacharjee (supra), we had elaborately examined the nature of Rule 9(9) of the 1964 Rules where after we have held the said provision to be mandatory. Rule 9(9) of the 1964 Rules requires consideration of the record of enquiry and recording of finding on each of the charges framed which has been held to be of mandatory character. It has been held thus:- "43. Proceeding to Rule 9(9) of the 1964 Rules, which has been extracted above, we find that it is couched in mandatory language. It says that the disciplinary authority shall, if it is not the inquiring authority, consider the record of enquiry and record its findings on each charge. The use of the word "shall" is indicative of the mandatory nature of the provision. Learned author Justice G.P. Singh in his seminal work Principles of Statutory Interpretation, 14th Edition, has explained that use of the word "shall" raises a presumption that the particular provision is imperative. The use of the word "shall" is indicative of the mandatory nature of the provision. Learned author Justice G.P. Singh in his seminal work Principles of Statutory Interpretation, 14th Edition, has explained that use of the word "shall" raises a presumption that the particular provision is imperative. Referring to various Supreme Court decisions, he has stated that the word "shall" is ordinarily mandatory but sometimes, taking into account the context or the intention, it can be held to be directory. However, this issue is no longer res-integra as imperativeness of the above provision has been judicially acknowledged. A Special Bench of this Court comprising three learned Judges in T.S. Srivastava v. State of Assam, AIR 1972 Gau 2 , had examined the provisions of Rule 9 of the 1964 Rules, including Sub-Rule (9), and thereafter held that the procedure laid down under Rule 9 is a mandatory procedure and any violation of the Rule will vitiate the enquiry. These Rules have been made in order to ensure security of service and cannot be allowed to be bypassed or observed in a casual and mechanical manner. These are not merely ceremonial adornment in print but are meant to be properly and positively observed. The legal position that Rule 9 of the 1964 Rules is of mandatory character have been consistently followed by this Court since then. In Renu Barman v. State of Assam, 2010 (3) GLT 552, a Division Bench of this Court has held that neither the penalty of removal nor that of dismissal can be imposed without adherence to the procedure obligated under Rule 9 of the 1964 Rules. Rule 9(9) of the 1964 Rules, which is of mandatory character, requires consideration of the record of enquiry and recording of finding on each charge by the disciplinary authority, if it is not the inquiring authority. In the instant case, there were altogether 5 charges against the petitioner and finding on each of the charges was required to be recorded by the disciplinary authority. In the instant case, there were altogether 5 charges against the petitioner and finding on each of the charges was required to be recorded by the disciplinary authority. Instead, what we notice is that initially the Administrative Committee held all the charges against the petitioner to be proved; thereafter copies of the enquiry report with the note of the Portfolio Judge were forwarded to the petitioner; after the response of the petitioner was received, it was found to be not acceptable and the matter was forwarded to the Full Court for taking a final decision on the penalty to be awarded. The Full Court then decided to impose the penalty of removal from service on the petitioner. Thus, no finding was recorded on any of the charges framed against the petitioner which is violative of Rule 9(9) of the 1964 Rules." 39. Reverting to the instant case, we find that not to speak of any charge-wise finding, no finding of guilt was specifically recorded by the Administrative Committee or by the Full Court. 40. Basab Bijoy Bhattacharjee (supra) has also held that an order of penalty must be a speaking order explaining or giving reasons as to why the delinquent was found guilty and as to why the particular penalty was imposed on him. An employee or officer who has been punished, must know how his defence was considered. 41. We have already extracted the resolution of the Administrative Committee dated 23.03.2011 and the Full Court resolution dated 28.05.2011. We may now-extract the final order passed by the Government on 09.06.2011, which reads as under:- "On the recommendation of the Hon'ble Gauhati High Court, communicated by the Registrar (Vigilance), Gauhati High Court, Guwahati, vide his letter No.HC.XV.30/2008/299/Vig. dated 07.06.2011, the Governor of Assam is pleased to compulsorily retire Smti. Jamuna Gogoi Phukan, Judicial Magistrate, 1st Class, Tihu, from Government service with effect from the date of issuance of this order." 42. No reasons are discernible either from the resolutions of the Administrative Committee or of the Full Court or from the impugned notification of the Government as to why the penalty of compulsory retirement was imposed on the petitioner, that too, without recording any finding of guilt. In Basab Bijoy Bhattacharjee (supra), it has been held thus:- "48. No reasons are discernible either from the resolutions of the Administrative Committee or of the Full Court or from the impugned notification of the Government as to why the penalty of compulsory retirement was imposed on the petitioner, that too, without recording any finding of guilt. In Basab Bijoy Bhattacharjee (supra), it has been held thus:- "48. Supreme Court in a catena of decisions has reiterated time and again the necessity and importance of giving reasons by the authority in support of its decision. It has been held that the face of an order passed by a quasi-judicial authority or even by an administrative authority affecting the rights of parties must speak. The affected party must know how his case or defence was considered before passing the prejudicial order. This would be applicable with more vigour in the case of orders imposing penalty because such orders are appealable orders and in the absence of any reasons recorded, appellate authority would not be in a position to deal with the challenge made to the order of penalty in the appeal. It goes without saying that reasons are live links between the mind of the decision making authority to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. In East Coast Railway v. Mahadev Appa Rao, (2010) 7 SCC 678 , Supreme Court has said absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary and hence legally unsustainable. Order of penalty should be a speaking order, whether it is in respect of a grade IV employee or a judicial officer. In other words, the order should speak for itself." 43. Thus, what comes to the fore is that there are multiple legal lacunae afflicting the decision-making process rendering the same legally unsustainable. 44. However, before parting with the record, there is one more aspect to which our attention has been drawn and which we would like to address. 45. Gauhati High Court Rules, 1954 has been framed in exercise of the powers conferred by Article 225 of the Constitution of India read with Article 6 of the Assam High Court Order, 1948. Chapter-1 of Part-1 deals with business not of a judicial character. 45. Gauhati High Court Rules, 1954 has been framed in exercise of the powers conferred by Article 225 of the Constitution of India read with Article 6 of the Assam High Court Order, 1948. Chapter-1 of Part-1 deals with business not of a judicial character. As per Rule 1 of Chapter-1, there shall be a Standing Committee consisting of the Chief Justice and such other Judge or Judges appointed from time to time by the Chief Justice which shall be called the Administrative Committee. As per Rule 2, the Administrative Committee shall be charged with the control and direction of the subordinate Courts so far as such control and direction are exercised otherwise than judicially. Rule 3 deals with the powers of the Administrative Committee, which includes making of recommendation for appointment of Judicial Officers and for their promotion, degradation, suspension or dismissal. Rule 3A provides that for every district in all the States under the jurisdiction of the Gauhati High Court, there shall be a Judge-in-Charge to be nominated by the Chief Justice though the Chief Justice may nominate one Judge for more than one district or for the entire State. Such Judge-in-Charge is called the Portfolio Judge. The duties and responsibilities of such Portfolio Judge as mentioned in Rule 3A centers around inspection of all Courts within his jurisdiction at least once in a calendar year; all administrative matters, including transfer and posting of officers, shall be routed through the Portfolio Judge of the concerned district; and all administrative problems of the district shall be attended to by the Portfolio Judge concerned. 46. In the scheme of administration of the High Court, Chief Justice is the head of the institution. He is the sole repository of power and authority for administration of the High Court and the subordinate Courts under the jurisdiction of the High Court. All committees constituted and all authorities designated are to function in a manner which assists the Chief Justice in the administration of the High Court. There cannot be multiple sources of power and authority in running the administration of the High Court. Power and authority vests solely and solely on the Chief Justice. 47. All committees constituted and all authorities designated are to function in a manner which assists the Chief Justice in the administration of the High Court. There cannot be multiple sources of power and authority in running the administration of the High Court. Power and authority vests solely and solely on the Chief Justice. 47. Having noticed the above, we find that in the instant case, ACR file of the petitioner for the year 2005 was placed before the Hon'ble Portfolio Judge as the reviewing authority to review the assessment and grading of the petitioner made by the reporting authority but we find that Hon'ble Portfolio Judge travelled beyond the assigned role by directing the Registrar (Vigilance) to requisition all the case records of disposed of cases of the petitioner for the particular year. Administrative functions of a Portfolio Judge are clearly mentioned in the High Court Rules as discussed above. To our mind, Hon'ble Portfolio Judge had transgressed the administrative jurisdiction vested on him. In the process, he did not review the assessment and grading of the petitioner made by the reporting authority, which was his assigned duty as the reviewing authority. Record produced before us does not disclose any vigilance report in respect of the petitioner relatable to the instant disciplinary proceeding. On the contrary, a vigilance situation was created by directing requisitioning of all case records of disposed of cases of the petitioner for the particular year and getting those scrutinized with a fault finding approach. Order to requisition the case records was passed on 07.05.2007 and Registrar (Vigilance) submitted report on 19.03.2008 after scrutiny of 122 case records over a period of about 10 months pointing out anomalies in 9 cases. Thereafter, on 20.03.2008 the matter was directed to be placed before the Hon'ble Chief Justice. The record also does not disclose that petitioner was counseled by the Hon'ble Portfolio Judge from time to time. 48. This is not to suggest that a Portfolio Judge should overlook or ignore adverse information received in respect of a Judicial Officer stationed within his administrative jurisdiction. If the information is credible, whether actionable or not, he should bring it to the notice of the Chief Justice and it is for the Chief Justice to take a decision. 49. 48. This is not to suggest that a Portfolio Judge should overlook or ignore adverse information received in respect of a Judicial Officer stationed within his administrative jurisdiction. If the information is credible, whether actionable or not, he should bring it to the notice of the Chief Justice and it is for the Chief Justice to take a decision. 49. In so far the charges are concerned, we would not like to go into the merit of the same because there is no finding to that effect by the disciplinary authority. Moreover, the jurisdiction that we are exercising in exercise of the power of judicial review is supervisory and not appellate. In this exercise we are confining ourselves to an examination of the legality and correctness of the decision making process and not the decision per se, on the well established principles of certiorari jurisdiction. Notwithstanding the same, because the petitioner was a Judicial Officer, we have given a cursory glance to the charges only to see whether there was any misconduct on the part of the petitioner or whether the anomalies detected were so serious to justify holding of disciplinary proceeding followed by imposition of the penalty of compulsory retirement. 50. In so far charge No.1 is concerned, we find from the enquiry report that it was a case of maintenance under section 125 of the Code of Criminal Procedure, 1973. It appears that the matter was initially contested by the parties by adducing evidence. However, on 27.04.2005, a joint compromise petition was filed by both the parties to dispose of the case on compromise because the 2nd party husband took back the 1st party wife and agreed to provide maintenance to her and her daughter. The compromise petition had the thumb impression of both the parties, signature of their lawyers and the signature of the petitioner as the Presiding Officer. In the order dated 27.04.2005 it was recorded that both the parties were present but they declined to examine anymore witnesses. They informed the Court that they had arrived at an amicable settlement for which the petitioner dismissed the maintenance application and pronounced judgment in the open Court. Thereafter, as detected by the Registrar (Vigilance), the separate judgment was not found available in the record though there was an entry to that effect in the judgment register. They informed the Court that they had arrived at an amicable settlement for which the petitioner dismissed the maintenance application and pronounced judgment in the open Court. Thereafter, as detected by the Registrar (Vigilance), the separate judgment was not found available in the record though there was an entry to that effect in the judgment register. Be that as it may, this was the factual context in which charge No.1 was framed. 51. In so far the other charges are concerned, those related to the manner of disposal of cases. Though a view may be taken that the manner of disposal of the cases may not be proper or upto the expected standard, there was no allegation of any improper or ulterior motive, malafide or that the decisions were influenced by extraneous considerations. Moreover, none of these decisions were challenged by anybody before the higher forum. Even after the "anomalies" were detected, High Court did not take any "corrective" steps by invoking its power of superintendence under Article 227 of the Constitution of India. 52. In K.K. Dhawan (supra), Supreme Court held that an officer exercising judicial or quasi-judicial powers acting negligently or recklessly could be proceeded against by way of disciplinary action and listed six instances when such action could be taken, which are extracted hereunder:- "28(i) where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; (ii) if there is prima facie material to show recklessness or misconduct in the discharge of his duty; (iii) if he has acted in a manner which is unbecoming of a government servant; (iv) if he has acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers; (v) if he had acted in order to unduly favour a party; (vi) if he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago 'though the bribe may be small, yet the fault is great". However, it was clarified that ultimately, it would all depend upon the facts of a particular case. 53. However, it was clarified that ultimately, it would all depend upon the facts of a particular case. 53. In J. Ahmed (supra), Supreme Court after holding that an act of omission or error of judgment would ordinarily not constitute misconduct though if such error or omission results in serious or atrocious consequences, the same may amount to misconduct, however was of the view that it would be difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. 54. Reverting back to the instant case, we are of the unhesitant view that the charges taken as a whole did not warrant initiation of disciplinary proceeding against the petitioner. 55. In the case of Ramesh Chander Singh (supra), Supreme Court held that if the High Court is to initiate disciplinary proceeding based on a judicial order, there should be strong grounds to suspect the officer's bonafides and the order itself should have been actuated by malice, bias or illegality. Merely because judgments or orders are wrong would be no ground to initiate disciplinary proceedings against officers of the subordinate judiciary. Such orders should be corrected in appeals and revisions. Supreme Court cautioned that while taking disciplinary action based on judicial orders, High Court must take extra care and caution. While saying that our system acknowledges fallibility of judges, Supreme Court observed that every error, howsoever gross it may be, should not be attributed to improper motive. Supreme Court held thus : "It has to be kept in mind that a subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure-contestants and lawyers breathing down his neck. He does not enjoy the detached atmosphere of the higher court. * * * * * * * * * * The judges of the High Court have a responsibility to ensure judicial discipline and respect for the judiciary from all concerned. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary if the higher courts express lack of faith in the subordinate judiciary for some reason or the other. That amounts to destruction of judiciary from within. * * * * * * * * * * The higher courts have been established to correct errors. That amounts to destruction of judiciary from within. * * * * * * * * * * The higher courts have been established to correct errors. In cases where intolerable error is pointed out, it is functionally required to correct the error in an appropriate case and in a manner befitting maintaining dignity of the court and independence of the judiciary. The higher court should convey its message in the judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellowed but clear and result oriented and rarely a rebuke." 56. At this stage, we may refer to the decision of the Supreme Court in High Court of Punjab and Haryana v. Iswar Chand Jain, (1999) 4 SCC 579 , where Supreme Court held that under Article 235 of the Constitution, High Court exercises complete control over the subordinate Courts. Inspection of subordinate Courts is one of the most important functions which the High Court performs for control over the subordinate Courts. Object of such inspection is for the purpose of assessment of the work performed by a subordinate Judge, his capability, integrity and competency. Since Judges are human beings and also prone to all the human failings, inspection provides an opportunity for pointing out the mistakes so that they are avoided in future and deficiencies, if any, in the working of the subordinate Courts are remedied. Inspection should act as a catalyst in inspiring subordinate Judges to give the best results. They work under great stress and under great hardship. They need encouragement. ACRs. are foundation on which the career of a Judicial Officer is made or marred. Inspection of subordinate Court is thus of vital importance and is not a one-day affair. It has to go on round the year by monitoring the work of the subordinate Court by the Inspecting Judge. 57. We say only this and no more. 58. Net result of the above discussion is that not only the decision-making process is legally unsustainable, even initiation of disciplinary proceeding against the petitioner in the facts and circumstances of the case was unwarranted. Consequently, impugned order of the Government dated 09.06.2011, resolution of the Full Court dated 28.05.2011 and of the Administrative Committee dated 23.03.2011 are set aside. 59. Consequent upon setting aside of the impugned order as above, petitioner should be reinstated in service with full back wages. Consequently, impugned order of the Government dated 09.06.2011, resolution of the Full Court dated 28.05.2011 and of the Administrative Committee dated 23.03.2011 are set aside. 59. Consequent upon setting aside of the impugned order as above, petitioner should be reinstated in service with full back wages. While directing so, we rely upon a decision of the Supreme Court in Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya, (2013) 10 SCC 324 , wherein in paragraph-22 Supreme Court held that the very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee shall be put in the same position in which he would have been but for the illegal action of the employer. The injury suffered by a person so dismissed or removed or otherwise terminated from service cannot easily be measured in terms of money. Supreme Court held that reinstatement of such an employee, which is preceded by a finding that the action taken by the employer is ultra vires the relevant statutory provision or the principles of natural justice would entitle the employee to claim full back wages. If the employer wants to deny back-wages to the employee, then he has to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee who has suffered due to an illegal act of the employer would amount to indirectly punishing the employee concerned and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments. 60. We had started this judgment by referring to and quoting from the decision of the Supreme Court in Madan Mohan Choudhury (supra). We feel that it would be apt to close the present proceeding by referring to the said decision for one last time. In Madan Mohan Choudhury (supra), appellant held the rank of Additional District and Sessions Judge. He was compulsorily retired from service by the State Government on the recommendation of the High Court, which was upheld by the Patna High Court on the judicial side. Though for different reasons, Supreme Court allowed the appeal by setting aside the judgment of the High Court; allowed the writ petition by setting aside the order of compulsory retirement with all consequential benefits to the appellant. 61. Though for different reasons, Supreme Court allowed the appeal by setting aside the judgment of the High Court; allowed the writ petition by setting aside the order of compulsory retirement with all consequential benefits to the appellant. 61. Having regard to the above, we see no reason to take a different approach. Consequently, petitioner shall now be reinstated in service with full back wages. She would also be entitled to all other consequential benefits following her reinstatement in service. 62. Writ petition is accordingly allowed but without any order as to cost. 63. Record produced by Mr. Nair is returned back.