“Disproportionate and shocking”, Calcutta HC imposes Rs 1 Lakh costs on itself for wrongly punishing Magistrate
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“Disproportionate and shocking”, Calcutta HC imposes Rs 1 Lakh costs on itself for wrongly punishing Magistrate

Meera Emmanuel

The Calcutta High Court recently imposed a fine of Rs 1 lakh on itself, after it found itself to blame for having erroneously confirmed a penalty of compulsory retirement on a Railway Magistrate cum Judicial Magistrate. The Magistrate had been suspended in 2007 on allegations that he had overstepped his jurisdiction.

Commenting on the manner in which the Magistrate’s case was handled, the Bench of Justices Sanjib B Banerjee and Surva Gosh observed,

Indeed, the handling of the matter by the High Court may have left the appellant both bemused and betrayed.”

Case background

Judge Mintu Mallick had a dual charge of Judicial Magistrate, 4th Court and Railway Magistrate, Sealdah at the time of his suspension. In May 2007, the judge had taken up proceedings suo motu over the issue of certain trains running late a suspicion that such trains would make stops in between to drop contraband material.

In an ostensible effort to inquire into the matter, the judge first enquired with the driver of the train that had arrived late by 15 minutes as to the reason for the delay. For this purpose, he also entered the driver’s cabin. After he failed to get any satisfactory answers from the driver, he directed both the driver and the train guard to present themselves in the railway court the same day. 

However, things turned chaotic following the registration of suo motu proceedings in the matter and the appearance of the driver and the guard in court. Several train drivers mobilised and commenced open protest at the court, using abusive slogans and disrupting the railway court’s work for the day. Contempt proceedings were also initiated against these protestors by the judge.

After the Calcutta High Court was informed of these events, a discrete inquiry was made. On the basis of the preliminary report, Mallick was suspended in December 2007.

The charges stated that Mallick had entered the drivers’ cabin illegally, that he habitually used his position to ride the train without a ticket, that he had overstepped his jurisdiction in questioning the driver. This apart, he was also blamed for triggering the court violence that took place.

Further, it was stated that if the charges were proved, it would show that the magistrate had made improper and illegal exercise of administrative powers and that such conduct was unbecoming of a Judicial Officer.

In due course, Mallick was eventually imposed a severe punishment of compulsory retirement for his alleged misconduct, invoking Section 11(19) of the West Bengal Judicial Service (Classification, Control and Appeal) Rules, 2007. The penalty was also approved by a Full Court of the Calcutta High Court.

A writ petition filed under Article 226 of the Constitution challenging this decision was dismissed in 2017. The instant Division Bench was then called to examine the appeal filed against this dismissal. In turn, the Bench found serious flaws in the way in which Judge Mallick was treated, in terms of the procedure followed as well as the basis on which the adverse judgments were passed.

Unreasoned order of penalty cannot be sustained

On the procedural front, the Court highlighted that at one stage, Judge Mallick ought to have been notified of the punishment proposed for his alleged misbehaviour. However, this was not done.

The procedure envisaged in Rule 11 of the said Rules of 2007 was followed in this case till the filing of the inquiry report and the forwarding of such report by the disciplinary authority to the appellant and calling upon the appellant to make a representation on the findings of the inquiry report. However, Rule 11(19) of the said Rules of 2007 in its use of the expression, ‘intimating the punishment proposed’, mandates that the nature of the punishment that could be meted out to the delinquent is required to be indicated. This was not done by the notice of March 7, 2013 which merely demanded of the delinquent to furnish his representation ‘as to why the Report shall not be accepted and you should not be suitably punished.'”

Further, the Bench took note that a detailed representation made by Mallick defending himself and challenging the penalty imposed was not factored at all before confirming his punishment.

The Court also observed that adverse judgments were not sufficiently reasoned, even missing the fact that one of the charges made were found to be entirely false by the initial inquiry report. As noted in the judgment,

The more alarming feature is that the court of the first instance may have missed the wood for the trees in its narration of the sequence of events without noticing that the detailed representation of the appellant against the inquiry report had neither been alluded to by the disciplinary authority nor even considered in imposing the punishment on the appellant. Equally, the court of the first instance failed to notice that even the consideration of the appeal – whether it was an appeal or a reconsideration in the nature of review – was just as fallacious as being uninformed by reasons and no reasons being forwarded to the person who suffered prejudice thereby...

... what cannot be glossed over is the subsequent subjective satisfaction of the disciplinary authority that the charges against the delinquent had been proved without any reasons being furnished in support thereof or any objective consideration of the representation of the delinquent being reflected in the decision. The records were called for from the High Court administration in course of the present appeal and there is nothing more evident from the records as to how the representation of the appellant against the inquiry report was considered than what is evident from the terse decision itself.

Even if reasons were found to exist in the file it would not have sufficed for such reasons would not have been worth the paper they were printed on if they had not been furnished to the delinquent. Astonishingly, it is discovered that no reasons actually exist.

In this backdrop, the Court also pointed out that the penalty meted out, in this case, was disproportionate.

Even if the procedure under Rule 11 pertaining to major penalties were to be followed, the consideration of the representation of a perceived delinquent by the disciplinary authority ought to reflect, apart from the finding of guilt against the delinquent, why a particular mode of punishment was found suitable than the others. 

The order of punishment, in this case, is singularly lacking on both counts: it does not indicate how the guilt of the appellant herein was established and how the punishment of compulsory retirement was called for in the circumstances.

The Bench proceeded to conclude that such an unreasoned order of punishment cannot be sustained.

Penalty is disproportionate and shocking even if charges proved

In any case, it was observed that even the alleged misconduct did not involve any moral turpitude by the judge. Rather, the acts of the judge at best indicated that he may have been overzealous in performing his job. The Court observed,

“Whether it was the youthful exuberance of a fledgling judicial officer or the innocence of his age that prompted him to imagine that he could rid the system of the malaise, the appellant appears to have thought that it was within the bounds of his judicial authority as a Railway Magistrate to address the issue…

Even if what the appellant set about to do may be regarded as completely flawed, it must be seen that his action may not have been guided by any personal motive. In his book, the appellant was trying to correct the malady that regularly brought grief to the public, particularly the persons availing of the relevant train at a busy time of the day. The appellant did not stand to gain anything if, as a result of his action, the regular delay in the running of the relevant train was corrected. 

… At the highest, the appellant may have been wrong in his perception and may have erroneously assumed jurisdiction in respect of a matter that did not fall within his judicial domain. But the incident had nothing to do with the sense of morality or integrity of the appellant nor could he have been seen to have embarked on the exercise for personal aggrandisement or like motive…

 It may have been wrong on the appellant’s part to try to use his judicial office to right what he perceived was a public wrong. Indeed, most Indians look the other way even when a crime is committed in their presence or a grievous wrong is done, lest they be dragged into any avoidable court proceedings. This judicial officer foolishly thought that he could single-handedly take on the smuggler mafia.

In view of the apparent bonafides of the magistrate, the High Court opined that the penalty of compulsory retirement in the present case was inappropriate. It held,

If the appellant had acted illegally or in an unauthorised manner, the appellant’s initiation of the relevant proceedings could have been challenged in accordance with law. But once it was evident that the appellant had assumed authority in his judicial capacity – however erroneous he may have been – the punishment of compulsory retirement appears to be grossly disproportionate and shocking. “

Even with respect to the violent protests that followed the Magistrate’s acts, the Court emphasised that the blame for the same could not be reasonably attributed to the magistrate.

Even on the most charitable reading… the violent demonstration and the disruption of the train services could not be directly attributed to the appellant even if the underlying suggestion … was that the appellant’s actions had triggered off the violent demonstration or the disruption of the train services.

Verdict

In view of these findings, the Court proceeded to quash the conviction of guilt and the penalty imposed on the magistrate. The magistrate was directed to be reinstated back to service immediately without any break. Further, the Court ordered,

The appellant will be entitled to all benefits and promotion as if no disciplinary proceedings had been initiated against the appellant, save the full complement of his salary. The appellant will be paid 75 per cent of the salary that he would have earned had he remained in service, since it does not appear that the appellant had taken up any alternative work in the interregnum. Though the appellant did not render any service, his punishment was unjustified and, at any rate, grossly disproportionate to the conduct complained of. The appellant appears to have used some of the time to obtain a Master’s degree…. 

… FMA 26 of 2019 is allowed as above with costs assessed at Rs.1 lakh to be paid by the High Court to the appellant.

[Read Judgment]

Calcutta-HC-Magistrate-cumpolsury-retirement-Judgment-in-appeal-July-2019.pdf
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