TMI Blog2019 (7) TMI 2004X X X X Extracts X X X X X X X X Extracts X X X X ..... or pressures. In the present case the ratio of the above judgments applies with greater vigor as this was the case where by bank had itself entered into a settlement as they were unable to get proper value of the property on auctioning. If two parties to a litigation or a inter se dispute arrive at a settlement, then de hors the fact that the amount in dispute was higher than what is actually settled, the courts have no option but to give effect to the settlement to close the case. In fact, the latest trends of courts have been to settle the matters as far as possible through mediation or otherwise. It would indeed be a travesty of justice if the respondent who only gave effect to a mutual settlement between the parties is charge sheeted for doing his bona fide duty and closing the case solely on the basis of the settlement. The learned Single Judge has rightly quashed the charge sheet and there are no infirmity in the impugned judgment - application dismissed. - Hon'ble Mr. Justice G.S. Sistani And Hon'ble Ms. Justice Jyoti Singh For the Appellant : Mr. Anil Soni, CGSC. For the Respondent : Mr. Sanjeev Bhandari with Mr. Prateek Kumar, Advocates. ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ointed out that as per para 4 of the application, the matter was referred to the department of legal affairs to seek their opinion, which was received on 08.11.2018. It is submitted that even after 08.11.2018, the present LPA was filed on 15.04.2019. There is no plausible explanation for the time taken between November, 2018 and April, 2019. 9. Learned counsel for the appellant while placing reliance on the case of Office of the Chief Postmaster General Ors. Vs. Living Media India Limited and Anr., reported in AIR 2012 SC 1506 submits that a consistent view has been taken while considering the application seeking condonation of delay, a liberal approach must be followed by the Court which shows that a meritorious matter is not left to be decided purely on technical reason. 10. We have heard learned counsel for the appellant and have examined the application. Taking into consideration the relevant paras of the application seeking condonation of delay, we are of the view that the applicant has failed to make out a case to show that there were sufficient reasons for the delay. The application is vague and lacks material particulars. 11. In the case of Office of the Chie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e orders had been passed by the petitioner in a disposed of OA 177/2009 which had the effect of withdrawal of the two Recovery Certificates (RCs). The total value of the two RCs was ₹ 2,37,55,771/-, which was substantially higher than the compromise amount of ₹ 20 lakhs. The Statement of Imputations attached to the charge-sheet also noted that the payment of the loan, taken by the two borrowers from the Bank, was secured by way of mortgage of a piece of land, with a building constructed thereon, and that the said mortgaged property was to be auctioned and the reserve price fixed at ₹ 3.34 crores. It was further noted that proclamation of sale had been issued on 24th July, 2015, by the Recovery Officer for the said RCs, requiring deposit of the earnest money of ₹ 85 lakhs, by the intending bidder. As such, the charge-sheet alleged that the orders, withdrawing the Recovery Certificates, were passed by the respondent, on 15th July, 2016, unauthorizedly, without legal authority or justification. It was alleged that by acting in the aforesaid manner, the respondent unauthorizedly exceeded his vested judicial powers showing his incapacity to function as a Presidin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327 : JT (1995) 8 SC 331], Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467], Ulagappa v. Divisional Commr., Mysore [(2001) 10 SCC 639], State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943], etc. 14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or chargesheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or chargesheet does not infringe the right of anyone. It is only when a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as 13, 14 15 of the judgment in the case of Kunisetty Satyanarayana (supra), we also deem it appropriate to reproduce para 16, which reads as under : 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. 22. While the Apex Court has observed that a writ petition is a discretionary relief and such discretion should ordinarily be exercised by quashing a show cause notice or charge-sheet, but this is not an absolute rule, the Supreme Court has further observed that in some very rare and exceptional case, the Supreme Court can quash the chargesheet if it is found to be wholly without jurisdiction or wholly illegal. In our view, the learned Single Judge has kept this observation in mind while allowing the writ petition and for good reasons which we propose to highlight in the subsequent paragraphs. 23. Before the Chairman, DRAT, the Financial Institutions had filed two affidavits. Paras 14 to 21 of the affidavit read as under : 14. I say th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any element of fraud or dishonesty of any official of the bank, the bank would have not supported the settlement, particularly after a complaint was brought to the notice of the bank and the bank was made aware of the suo moto proceedings pending before the Tribunal. This affidavit also highlights that proper procedure was followed before sanction was given for the settlement. The affidavit first highlights the insurmountable difficulty in auctioning the property for recovery of the dues in para 16 wherein it was deposed that the bank recovery policy has been duly followed in sanctioning the OTS. The Circle officer of the Bank also accorded its approval to the OTS dated 25.11.2014. The deponent also made it clear that while arriving at the settlement, no portion of the principal amount had been waived. The entire principal amount disbursed by the New Bank of India under the loan facility stood recovered and only the interest was sacrificed as it was felt that the property would not be successfully auctioned. Paras 19 and 20, we repeat, highlight the fact that the OTS dated 25.11.2014 is valid and is in accordance with law and the bank stands by the said OTS. The bank thereafter go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me of personal hearing given to him by me 26. It is a settled law that the Chairperson, DRAT is not competent to take up suo moto proceedings, as has been held in the case of Smt. Harpreet Kaur and another Vs. M/s Fullerton India Credit company Ltd., 2018 (249) DLT 283 DB and Padam Singhee and another Vs. M/s SVOGL Oil, Gas and Energy Ltd. and others, W.P. (C) 9616/2018, more particularly, paras 19 and 20 of Padam Singhee (supra), which read as under : 19. Surprisingly, contrary to its own view, DRAT has exercised power which it did not possess. Even if the DRAT was to disagree with its earlier view, propriety demands the DRAT to refer the issue to a larger bench (if permissible) for fresh consideration. In this regard, we refer to the judgment of the Supreme Court in the case of Dr. Vijay Laxmi Sadho vs. Jagdish, (2001) 2 SCC 247 wherein the Supreme Court in para 33 has held as under: 33. As the learned Single Judge was not in agreement with the view expressed in the earlier decision of another Single Judge of that High Court it would have been proper, to maintain judicial discipline, to refer the matter to a larger Bench rather than to take a different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Sugar Mills Ltd. v. Shyam Sunder Jhunjhunwala [AIR 1961 SC 1669], the pronouncements in Jaswant Sugar Mills Ltd. v. Lakshmi Chand [AIR 1963 SC 677], Associated Cement Companies Ltd. v. P.N. Sharma [AIR 1965 SC 1595] and Kihoto Hollohanv. Zachillhu [1992 Supp (2) SCC 651], ruled thus: (Madras Bar Assn. case [(2010) 11 SCC 1], SCC p. 35, para 45) 45. Though both courts and tribunals exercise judicial power and discharge similar functions, there are certain well-recognised differences between courts and tribunals. They are: (i) Courts are established by the State and are entrusted with the State's inherent judicial power for administration of justice in general. Tribunals are established under a statute to adjudicate upon disputes arising under the said statute, or disputes of a specified nature. Therefore, all courts are tribunals. But all tribunals are not courts. (ii) Courts are exclusively manned by Judges. Tribunals can have a Judge as the sole member, or can have a combination of a judicial member and a technical member who is an expert in the field to which the tribunal relates. Some highly specialised fact-finding tribunals may have only technical member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by special legislations to exercise a particular power in a particular manner as provided under the Act. They cannot assume the role of a court of different nature which really can grant liberty to initiate any action against the bank . They are only required to decide the lis that comes within their own domain. If it does not fall within their sphere of jurisdiction they are required to say so. Taking note of a submission made at the behest of the auction-purchaser and then proceed to say that he is at liberty to file any action against the bank for any omission committed by it has no sanction of law. The said observation is wholly bereft of jurisdiction, and indubitably is totally unwarranted in the obtaining factual matrix. Therefore, we have no hesitation in deleting the observation, namely, liberty is also given to the auction purchaser to file action against the bank for any omission committed by it . 27. In the case of Satish Chander Gupta others Vs. State Bank of India others, W.P. (C) 2588/2010, the petitioners had sought to make payment through a one-time settlement to the bank and the OTS was accepted by the bank. The amount was paid in full and a No Due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her Vs. M/s SVOGL Oil, Gas and Energy Ltd. others, W.P. (C) 9616/2018 which is based on a decision rendered by the Apex Court in the case of Standard Chartered Bank Vs. Dharminder Bhohi and others, 2013 (15) SCC 341, paras 33 to 38 of which, have been relied upon, Division Bench has culled out the powers of the Tribunal and the Appellate Tribunal. 30. A reading of the charge-sheet would show that there is no allegation against the respondent regarding moral turpitude or corruption. The first question, which would arise and has been considered in detail is regarding the extent to which disciplinary action against officers exercising judicial or quasi-judicial powers can be taken. 31. The learned Single Judge in his order dated 25.09.2018 has taken note of the subsequent view taken in the case of Zunjarrao Bhikaji Nagarkar Vs. U.O.I., (1999) 7 SCC 409 wherein, the Supreme Court, dealing with the said aspect observed as follows: 40. When we talk of negligence in a quasi-judicial adjudication, it is not negligence perceived as carelessness, inadvertence or omission but as culpable negligence. This is how this Court in State of Punjab v. Ex-Constable Ram Singh [( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant imposition of penalty was imperative. But then, there is nothing wrong or improper on the part of the appellant to form an opinion that imposition of penalty was not mandatory. We have noticed that the Patna High Court while interpreting Section 325 IPC held that imposition of penalty was not mandatory which again we have said is not a correct view to take. A wrong interpretation of law cannot be a ground for misconduct. Of course it is a different matter altogether if it is deliberate and actuated by mala fides. 41. When penalty is not levied, the assessee certainly benefits. But it cannot be said that by not levying the penalty the officer has favoured the assessee or shown undue favour to him. There has to be some basis for the disciplinary authority to reach such a conclusion even prima facie. The record in the present case does not show if the disciplinary authority had any information within its possession from where it could form an opinion that the appellant showed favour to the assessee by not imposing the penalty. He may have wrongly exercised his jurisdiction. But that wrong can be corrected in appeal. That cannot always form a basis for initiating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Allahabad, 2007 (4) SCC 247. The relevant paras of this judgment read as under: 11. We fail to understand as to how the High Court arrived at a decision to initiate disciplinary proceedings solely based on the complaint, the contents of which were not believed to be true by the High Court. If the High Court were to initiate disciplinary proceedings based on a judicial order, there should have been strong grounds to suspect officer's bona fides and the order itself should have been actuated by malice, bias or illegality. The appellant officer was well within his right to grant bail to the accused in discharge of his judicial functions. Unlike provisions for granting bail in the TADA Act or the NDPS Act, there was no statutory bar in granting bail to the accused in this case. A Sessions Judge was competent to grant bail and if any disciplinary proceedings are initiated against the officer for passing such an order, it would adversely affect the morale of subordinate judiciary and no officer would be able to exercise this power freely and independently. 12. This Court on several occasions has disapproved the practice of initiation of disciplinary proceedings again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within. 15. In Kashi Nath Roy v. State of Bihar, (1996) 4 SCC 539 this Court observed under a similar circumstance that in our system appellate and revisional courts have been set up with the presupposition that the lower courts in some measure of cases can go wrong in decision-making in law and in fact. 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. 16. In a series of other cases also, this Court disfavoured the practice of passing strictures or orders against the subordinate officers. (See Braj Kishore Thakur v. Union of India [(1997) 4 SCC 65 : 1997 SCC (Cri) 514 : AIR 1997 SC 1157] ; Alok Kumar Roy v. Dr. S.N. Sarma [AIR 1968 SC 453] .) 17. In Zunjarrao Bhikaji Nagarkar v. Union of India, (1999) 7 SCC 409, this Court held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the issue of a certificate to a Recovery Officer, the Presiding Officer shall have power to withdraw the certificate or correct any clerical or arithmetical mistake in the certificate by sending intimation to the Recovery Officer. (3) The Presiding Officer shall intimate to the Recovery Officer any order withdrawing or canceling a certificate or any correction made by him under sub-section (2). 33. Protection of action taken in good faith No suit, prosecution or other legal proceeding shall lie against the Central Government or against [the Presiding Officer of a Tribunal or the Chairperson of an Appellate Tribunal] or against the Recovery Officer for anything which is in good faith done or intended to be done in pursuance of this Act or any rule or order made thereunder. 35. Perusal of Section 33 above shows that the rationale of the protection given under the said Section is in line with the ratio of the judgments referred above. In case a Central Government Officer or a Presiding Officer of the Tribunal or the Chairman of the Appellate Tribunal take any action, which is in good faith, needless to say he cannot be and should not be subjected to any prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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