1. By this petition under Arts. 226 and 227 of the Constitution of India, the petitioner seeks to get quashed the order of his dismissal of date August 30, 1961 and also to get quashed the further order of dismissal of his appeal of date October 16, 1962. The petitioner further prays for issuance of a writ of mandamus to the respondent, namely, the State of Maharashtra, to treat the petitioner as if the orders dated August 30, 1961 and October 16, 1962 were not passed.
2. The petitioner joined the Provincial Judicial Service of the State of Madhya Pradesh. He was recruited as a Civil Judge, Second Class. On the eve of reorganization of States, that is, on 31 October, 1956, the petitioner was holding a post of an Additional District and Sessions Judge (confirmed) at Seoni. He was allotted on reorganization to the State of Bombay. The petitioner in the reorganized State of Bombay was holding a post of Assistant judge and at the material time, that is, on September 30, 1959, the petitioner was holding a post of an Assistant Judge and Additional Sessions Judge, Sangli. Prior to his posting at Sangli, the petitioner was holding a post of an Assistant Judge and an Additional Sessions Judge at Amravati. The High Court, on certain information received by it, had directed the District and Sessions Judge, Amravati, Sri Hadole, and also the Anti-corruption Department to hold a confidential enquiry into the conduct of the petitioner. On receiving the confidential report and on its perusal the High Court was of the opinion that there was a prima facie case for a regular departmental enquiry to be started against the petitioner. The High Court recommended to the State Government that a departmental enquiry should be started against the petitioner and that the District and Sessions Judge at Nagpur, Sri Seth, should be appointed an enquiry officer. The recommendations of the High Court were accepted by the State Government and by its letter of date September 30, 1959 the State Government informed the Registrar of the High Court that the recommendations of the High Court were accepted that Sri Seth, District Judge, Nagpur, was appointed an enquiry officer to hold the enquiry and further requested the Registrar to communicate this order to the petitioner and also to request the petitioner to proceed on leave immediately pending completion of the departmental enquiry as an alternative to suspension. The order which was sent to Sri Seth framed charges and communicated to the petitioner, on or about 8 December, 1959, the charges framed against the petitioner and the statements of allegations on the basis of which the charges were framed. The charges framed against the petitioner were two. The first charge framed against the petitioner was that he was guilty of dishonourable and corrupt conduct and had indulged in corrupt practices while working as First Additional District and Sessions Judge, Amravati, during the period from June 21, 1957 to March 31, 1959. In the first charge framed, two specific instances, instances (a) and (b), of the corrupt practices were given. The second charge was that the petitioner knowingly associated himself with litigants whose matters were pending before him and were to be heard by him and that he had conducted himself in a manner which was unworthy of a person occupying a judicial office and had thereby brought the judiciary in disrepute. The petitioner, after receiving the charges, duly filed his written statement on December 22, 1959. Sri Seth, after holding a departmental enquiry, submitted his report of date February 27, 1960. On August 30, 1960, a show-cause notice was issued to the petitioner calling upon him to show cause within thirty days of the receipt of the notice why the proposed action, namely, dismissal, should not be taken against him. The petitioner showed cause by his reply dated September 20, 1960. After considering the reply, the order of dismissal was made on August 30, 1961 by the Governor of Maharashtra. The order is signed by the Secretary to the Government of Maharashtra, Law and Judiciary Department, by order and in the name of the Governor of Maharashtra. Along with the order of dismissal of the petitioner a copy of the extract of the letter from the Secretary, Maharashtra Public Service Commission, was also sent to the petitioner. On September 14, 1961, the petitioner submitted an appeal to the Governor through the Secretary, Law and Judicial Department, and the Registrar, High Court, purporting to be one under rule 57 of the Civil Services (Classification, Control and Appeal) Rules, which have been incorporated as Appendix I in the Bombay Civil Services (Conduct, Discipline and Appeal) Rules. This appeal was dismissed by an order dated 16 October, 1962. By this petition which has been instituted on December 17, 1962, the petitioner, as already stated, is seeking to get quashed these two orders, the orders of his dismissal and the order dismissing the appeal against the order of dismissal.
3. Sri Phadke, learned counsel for the petitioner, has raised three contentions before us. Sri Phadke firstly contends that the order made by the Governor on September 30, 1959, appointing Sri Seth to hold a departmental enquiry in respect of the alleged charges, was wholly without jurisdiction; consequently all further orders made, namely, the report of Sri Seth and the order of dismissal made by the Governor have been vitiated and are invalid and inoperative in law. The jurisdiction to hold a departmental enquiry and to appoint an officer to hold a departmental enquiry exclusively vests in the High Court. Secondly, Sri Phadke contends that even assuming that the Governor had jurisdiction to appoint an enquiry officer to hold an enquiry, the order of dismissal made is vitiated being one in contravention of principles of natural justice. And lastly, Sri Phadke contends that the right of appeal which has been denied to him inasmuch as independent mind had not been applied to the consideration of his appeal. Sri Kotwal, learned Government Pleader, on the other hand, contends that the jurisdiction to hold a departmental enquiry exclusively vests in the Governor and therefore, the order made with jurisdiction. The order of dismissal made by the Governor has not been vitiated by reason of contravention of any principles of natural justice, and lastly Sri Kotwal contends that the petitioner gets no right of appeal under the aforesaid rule 57. We would proceed to consider these contentions of the respective parties seriatim.
4. The first contention of Sri Phadke and Sri Kotwal principally turns on the construction of Arts. 227, 233, 234, 235, 309, 310 and 311 of the Constitution of India. We think, before we proceed to deal with the arguments of counsel for parties, it will be convenient to consider relevant provisions of the Constitution.
5. Part VI of the Constitution relates to the States and Chap. V thereof relates to the High Courts in the States. Article 217(1) provides that every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court. Article 218 provides that Cls. (4) and (5) of Art. 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme Court. Clauses (4) and (5) of Art. 134 relate to the procedure to be followed for the removal of a Judge of the Supreme Court and, with adaptation in Art. 218, for the removal of the High Court Judge. It would be seen that the Judges could only be removed by the order of the President and after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of the House present and voting has been presented to the President. Article 227(1) provides that every High Court shall have superintendence over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of that article provides that, without prejudice to the generality of the powers conferred on the High Court by the aforesaid Clause (1), the High Court may call for certain returns and make and issue general rules, prescribe forms, etc.
6. Chapter VI deals with 'Subordinate Courts' to the High Courts and the said chapter consists of Arts. 233 to 237, both inclusive. Article 233 deals with appointment of District Judges and Clause (1) thereof provides that appointments of persons to be, and the posting and promotion of, District Judges in any State shall be, made by the Governor of the State in consultation with High Court exercising jurisdiction in relation to such State. Clause (2) provides that a person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he had been for not less than seven years an advocate or a pleader an is recommended by the High Court for appointment. Article 234 relates to recruitment of persons other than District Judges to the judicial service and it provides that the appointments of persons other that District Judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State. Article 235 vests in the High Court control over District Courts and Courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge. Article 236 provides a dictionary for the expression 'District Judge' and it is sufficient to state that in Clause (a) of Art. 236, 'assistant judge' is included in the expression 'district judge.' Clause (b) provides a dictionary for the expression 'judicial service.'
7. Part XIV of the Constitution relates to services under the Union and the States. Articles 309, 310 and 311 fall in Chap. I of this part, and Art. 309 confers power on the appropriate legislature to enact law subject to the provisions of the Constitution to regulate the recruitment and conditions of service of persons appointed to public services and posts in connexion with the affairs of the Union or of any State. The proviso to this article confers power on the President or the Governor to make rules in this respect until provision in that behalf is made by or under an Act of the appropriate legislature under this article. Clause (1) of Art, 310 provides, except as expressly provided by the Constitution, every person who is a member of a defence service or of a civil service of the Union or of an all-India service or holds any post connected with defence or any civil post under Union, holds office during the pleasure of the President, and every person who is a member of a civil service of State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
8. Article 311, as it stood prior to its amendment by the Constitution (Fifteenth Amendment) Act, reads as follows :
'(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.'
9. We may state here that no law regulating recruitment and conditions of service of persons appointed to the said services has been enacted by the State Legislature nor have there been any rules framed by the Governor after the Constitution came into force. However, there had been rules framed under S. 96B of the Government of India Act, 1915, as amended by the amending Act of 1919. These rules were framed in the year 1930 and they are called Central Civil Services (Classification, Control and Appeal) Rules. It is not in dispute that the rules which may be required to be considered for the purpose of this case are rule 49, which enumerates penalties, rule 52 which relates to the disciplinary authority, rule 55 which prescribes the procedure to be followed at the enquiry and rule 57 which relates to the right of appeal. These rules were continued both under the Government of India Act by virtue of S. 276 and Art. 313 of the Constitution. That article provides that until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution.
10. Considering the aforesaid provisions, the position that emerges is that superintendence and control over all Courts subordinate to it vests in the High Court. The power of posting, promotion and appointment of District Judge rests with the Governor on the recommendation of the High Court. The power of appointing Judges other than District Judges to the judicial service rests with the Governor. Exercise of that power is controlled in accordance with the rules made by the Governor in that behalf after consultation with the State Public Service Commission and the High Court. Control over the subordinate judiciary (District Judges and Judges subordinate to them) vests in the High Court. Tenure of office of a subordinate judicial officer is at the pleasure of the Governor, but it is now well-settled that the exercise of that pleasure is subject to two conditions provided in Art. 311 of the Constitution, namely, the civil servant cannot be dismissed or removed by an authority subordinate to that by which he was appointed, and the second restriction is that such a person cannot be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.
11. It is the argument of Sri Phadke that superintendence and control over subordinate Courts vest in the High Court under Arts. 227 and 235 of the Constitution. The High Court therefore has exclusive jurisdiction in disciplinary matters. No doubt, the power of appointing District Judges as well as Judges subordinate to District Judges rests with the Governor and ordinarily all the powers in relation to suspension and dismissal would by implication also rest with the Governor by virtue of S. 16 of the Central General Clauses Act. But such power cannot be read in Arts. 233 and 234 inasmuch as in Art. 235 a 'different intention appears.' Article 310 no doubt provides that the tenure of a civil servant shall be at the pleasure of the Governor but that pleasure has to be exercised subject to the qualifications mentioned in Art. 311 and one of the qualifications is that he has to be afforded a reasonable opportunity to show cause against the proposed action. That opportunity has to be afforded to him in accordance with the provisions of law. The disciplinary authority being the High Court under Art. 235, a reasonable opportunity has to be afforded by the High Court. The High Court therefore had to appoint an officer to conduct the departmental enquiry and it was the High Court and the High Court alone which could have made that appointment. According to Sri Phadke, on the construction of these articles, the position that emerges is that the High Court being the exclusive disciplinary authority, it must appoint an officer to hold a departmental enquiry. It is the High Court that must consider the report and if the High Court comes to the conclusion on consideration of the report that the charges proved merit dismissal or removal, then in that event the High Court has to recommend to the Governor that the said civil servant should be dismissed or removed from service, the Governor being the appointing authority. If, on the other hand, the High Court comes to the conclusion that the charges proved against the civil servant are not such as would require or merit imposition of penalty of dismissal or removal, then it is not necessary for the High Court to refer the matter to the Governor. It can impose penalty it thinks proper on the individual officer. Sri Phadke placed reliance in support of his contention on the decision of a Special Bench of the Calcutta High Court in Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal : (1961)IILLJ312Cal , Mohomed Ghouse v. State of Andhra : AIR1955AP65 , and Mohomed Ghouse v. State of Andhra Pradesh : AIR1959AP497 .
12. Sri Kotwal, on the other hand, argued that the proper approach to the case would be first to consider relevant articles other than Art. 235 and ascertain their contents. Control that is vested in the High Court under Art. 235 is what has not been conferred on other authorities under articles other than Art. 235. According to Sri Kotwal, the power of appointing both District Judges as well as Judges subordinate to District Judges rests with the Governor. Reading these articles along with S. 16 of the General Clauses Act, that power of appointing will also include the power to dismiss or suspend District Judges as well as Judges subordinate to District Judges. The power of dismissal an suspension is not expressly given in Arts. 233 and 234, because S. 16 of the General Clauses Act was already there. He drew our attention to certain observations in Rayarappan v. Madhavi Amma A.I.R. 1950 F.C. 140. He further argued that the submission made by him is also strengthened, because it is the Governor who has been empowered to make rules regulating conditions of service of a civil servant. Expression 'conditions of service' includes the circumstances under which a person could be dismissed or removed. Further under Art. 310 a civil servant in the State holds office during the pleasure of the Governor. No doubt the pleasure has to be exercised subject to the conditions mentioned in Art. 311. But it is the Governor who has to afford a reasonable opportunity to the public servant who is proposed to be removed or dismissed from service. Reading all these provisions together, it is the Governor who has right to appoint, therefore, a right to dismiss. It is the Governor who has power to frame rules regulating conditions of service which includes the power to make rules relating to the circumstances and the tenure of office of District Judges and Judges subordinate to the District Judges. The combined effect of all these powers leaves no doubt that it is the Governor who is the sole disciplinary authority. Sri Kotwal placed reliance on a decision of the Supreme Court in Pradyat Kumar Bose v. Chief Justice of Calcutta : 2SCR1331 . According to Sri Kotwal, therefore, the control vesting in the High Court is not disciplinary control. On the other hand, the control conferred is on Courts and not Judges of the Courts save and except three matters, namely, posting and promotion of and grant of leave to Judges subordinate to the District Court.
13. With respect to the learned counsel appearing for both sides we find it difficult to adopt the line of reasoning adopted by either of them. Sri Phadke wants us to construe Art. 235 by itself and then proceed to other articles, while Sri Kotwal wants us first to consider article other than Art. 235 and then to come to Art. 235. In our opinion, the rule of construction requires that all the relevant provisions of a statute must be considered together in order to understand the legislative intent. It is first necessary to ascertain what is the true meaning of the two expressions 'court' and 'control' occurring in Art. 235 of the Constitution. These two expressions have not been defined in the Constitution. The Constitution does not provide any dictionary for these two expressions. In Halsbury's Laws of England (3rd Edn.), Vol. 9, at p. 342, the meaning of 'court' has been given in the following terms :
'Originally the term 'court' (a) meant among other meanings, the sovereign's palace; it has acquired the meaning of the place where justice is administered and, further, has come to mean the persons who exercise judicial functions under authority derived either immediately or mediately from the sovereign.'
14. A similar meaning of the expression 'court' is given in Vol. 21 of Corpus Juris Secundum in the following terms :
'While the meaning of the term 'court' will vary with the context in which it is used, generally speaking, a Court is a body in the Government to which the public administration of justice is delegated, being a tribunal officially assembled under authority of law, the appropriate time and place for the administration of justice, through which the State enforces its sovereign rights and powers ... A Court has also been defined as a place where justice is judicially administered.'
15. Having regard to this accepted a definition or the expression 'Court,' there can hardly be any doubt that the expression means not only the building or the place where justice is administered but also the judges who administer justice.
16. The Oxford English Dictionary, Vol. II, has given the meaning of the word 'control' as 'to exercise restraint or direction upon the free action of, to hold sway over, exercise power or authority over, to dominate, command.'
17. Webster's Dictionary has defined 'control' in the following terms :
'To exercise such an influence over (something) as to guide, direct, manage or restrain (it); to have under command; to check.'
18. We find no reason to give a restricted meaning to the expression 'control.'
19. Other part of Art. 235 itself indicates that the meaning of the word 'control' is the ordinary meaning which we have quoted above. It would be noticed that the latter part of Art. 235 provides, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authority the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law. The latter half of Art. 235 indicates that the nature of control is such that the exercise thereof may give rise to a right of appeal under the law regulating the conditions of his service. If we turn to the rules to which we have already referred, we find that there is no right of appeal save and except where disciplinary action imposing penalty is taken. The clause in the latter half 'to deal with him otherwise than in accordance with the conditions of his service' indicates that the exercise of the right of control is in respect of the conditions of his service. Reading the article as a whole, there is hardly any doubt that the control vested in the High Court is the control which is disciplinary in nature over District Judges and Judges subordinate to the District Judges. In other words, the control vested in the High Court under Art. 235 is disciplinary control over Subordinate Courts. An argument was advanced by Sri Kotwal that the nature of the control vested in the High Court is indicated in the article itself and that it is the posting and promotion of, and the grant of leave to persons belonging to the judicial service of a State and holding any post inferior to the post of District Judge. According to Sri Kotwal, that is the only control. We find it difficult to accept this construction put on the article by Sri Kotwal, because what has been mentioned in the article is
'the control ... including the posting and promotion of, and the grant of leave to ...'
20. The definition is thus an inclusive definition and it is well - settled principle which has been reiterated by their lordships of the Supreme Court in State of Bombay v. Hospital Mazdoor Sabha : (1960)ILLJ251SC that
'the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. Where the Courts are dealing with an in inclusive definition, it would be inappropriate to put a restrictive interpretation upon terms of wider denotation.'
21. The clause 'including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service' cannot therefore have the effect of a restrictive than ordinary meaning of the word 'control,' or to confine its meaning only to these three things. The view taken by us also finds support in the legislative history and Arts. 50 and 237 of the Constitution. We need not trace it prior to the Government of India Act, 1935. Sections 253, 254 and 255 of the Government of India Act are the special provisions as to judicial officers. Section 254 relates to appointments, posting and promotion of District Judges and the provisions of Art. 233 in the Constitution are the corresponding provisions in S. 254 of the Government of India Act. Section 255 of the Government of India Act is the corresponding provision of Art. 234 of the Constitution relating to recruitment of persons other than District Judges who have been termed in S. 255 of the Government of India Act 'subordinate civil judicial service.' It would however be noticed that, though by virtue of Sub-section (3) of S. 255 the power of posting and promotion of, and the grant of leave to persons belonging to the subordinate civil judicial service of a province and holding any post inferior to the post of District Judge was vested in the High Court, there was no provision there vesting in the High Court control over District Courts and Courts subordinate thereto. It has been for the first time vested in the High Court by Art. 235 of the Constitution of India. It would therefore be legitimate to assume that the 'control' vested in the High Court was something more than power of posting and promotion of and grant of leave to subordinate judicial officers. It has to be noticed that the makers of the Constitution of a Sovereign Democratic Republic and by Arts. 233 to 237 were making provision for Courts subordinate to the High Court. High Court was independent of the executive. Such however was not the case relating to the judiciary subordinate to the High Court. Certain measure of a representative Government was introduced by enactment of the Government of India Act, 1935. The then Joint Parliamentary Committee in its report pointed out :
'We have been greatly impressed by the mischiefs which have resulted elsewhere from a system under which promotion from grade to grade in a judicial hierarchy is in the hands of a Minister exposed to pressure from members of a popularly elected legislature. Nothing is more likely to sap the independence of a magistrate than the knowledge that his career depends upon the favour of a Minister ... It is the subordinate judiciary in India who are brought most closely into contact with the people, and it is no less important, perhaps indeed even more important, that their independence should be placed beyond question than in the case of the superior Judges.'
22. It is also pertinent to note that the power of posting and promotion of, and grant of leave to persons belonging to the subordinate civil judicial service of a province was conferred on the High Court for the first time under Sub-section (3) of S. 255 of the Government of India Act. It would be reasonable to assume that the Joint Parliamentary Committee's report and the necessity of having independent subordinate judiciary was before the Constituent Assembly at the time of the framing of the Constitution. Article 50 which provides that the State shall take steps to separate the services of the State clearly indicates that the necessity of making subordinate judiciary independent of executive control was before the Constituent Assembly. It is in these circumstances that the control over District Courts and Courts subordinate to District Court has been conferred on the High Court in addition to the posting and promotion of and the grant of leave to persons belonging to the judicial service. In our opinion, it is a deliberate step taken towards the ultimate objective stated in Art. 50 of the Constitution. Article 237 also indicates the same legislative intent. That article provides that the Governor may by public notification direct that the foregoing provisions of this chapter and any rules made thereunder shall, with effect from such date as may be fixed by him in that behalf, apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification. It is clear that the Constituent Assembly by framing this article has enabled the Governor to take further steps in the matter of separation of judiciary from the control of executive by bringing magistracy under the control of the expression 'control' in Art. 235 includes the power to exercise disciplinary jurisdiction over District Courts and Courts subordinate thereto.
23. The question next arises is whether the power conferred is absolute or whether there are any limitations thereon. We have already said that the rule of construction requires that all the relevant provisions of law should be read together and the statute must be so construed that if reasonably possible all the relevant provisions should harmonize with one another. Articles 233 and 234 confer powers on the Governor to appoint District Judges and Judges subordinate to the District Judges, though the exercise of the powers is regulated in the manner provided in those articles.
24. Section 16 of the General Clauses Act provides :
'Where, by any Central Act ... a power to make any appointment is conferred, then, unless a different intention appears, the authority having, for the time being, power to make the appointment shall also have power to suspend or dismiss any person appointed, whether by itself or any other authority, in exercise of that power.
It has been the argument of Sri Phadke that the provisions of Art. 235 disclosed a different intention. It has to be noticed that Art. 235 does not in express terms say that the Governor shall not have the power to dismiss or suspend or that the High Court shall have exclusive power to dismiss or suspend. It is therefore difficult to accept Sri Phadke's contention that there is any different intention in Art. 235 which would exclude application of S. 16 of the General Clauses Act. Article 367 makes the provisions of the General Clauses Act applicable for the interpretation of the Constitution. In A.I.R. 1950 F.C. 140, their lordships of the Federal Court have observed that the power to terminate flows naturally and as a necessary sequence from the power to create. At p. 141, their lordships observed : 'The General Clauses Act has been enacted so as to avoid superfluity of language in statutes wherever it is possible to do so. The legislature instead of saying in order XL, rule 1 (provision relating to appointment of receiver), that the Court will have power to appoint, suspend or remove a receiver, simply enacted that wherever convenient the Court may appoint a receiver and it was implied within that language that it may also remove or suspend him.'
25. It would be noticed from the observations of their lordships that one of the objects in enacting the General Clauses Act was to avoid superfluity of language in the various enactments that the legislature enacts. The ratio that emerges from this decisions is that the power of appointing District Judges and Judges subordinate to them includes the power of dismissing them and that well-settled principle of law will also have to be read in the relevant articles. The Governor has the power to appoint District Judges as well as Judges subordinate to the District Judges. It would therefore follow that the legislative intent is that the Governor will also have the power to suspend or dismiss these Judges, namely, District Judges and Judges subordinate to the District Judges. Of course the exercise of the power to suspend or dismiss will be subject to the same limitations as the power to appoint is.
26. Apart from the aforesaid position obtaining by reason of the provisions of S. 16 of the General Clauses Act, the same result would also follow by virtue of the provisions of Arts. 310 and 311 of the Constitution. Article 310, as already stated, provides that the tenure of office of civil servants shall be at the pleasure of the Governor. No doubt the pleasure has to be exercised subject to certain qualifications contained in Art. 311 but, nonetheless the overriding power of terminating the tenure of office of a civil servant rests with the Governor. The qualifications for the exercise of this pleasure indicated in Art. 311 would also lead to the same result. One of the qualifications is that no authority subordinate to the appointing authority can dismiss a civil servant. In other words, dismissal for misconduct has to be by the appointing authority or the authority superior to the appointing authority. The Governor was the appointing authority in this case. It would naturally follow that the power to dismiss District Judge or Judge subordinate to the District Judge would be that of the Governor. None of the decisions to which our attention was drawn by Sri Phadke has held to the contrary. On the other hand, all the decisions admit that power to pass an order of dismissal is exclusively that of the Governor.
27. The question next arises is whether the power to dismiss would also include the power to impose penalty other than dismissal or removal. We have already stated that Sri Kotwal has so contended. The argument has been that it is the Governor who is the appointing authority and it is the Governor who has the power to make rules regulating recruitment and conditions of service including the provision relating to dismissal for misconduct. It is the Governor who has the power to dismiss. The combination of these three powers exhausts all disciplinary jurisdiction. There is no difficulty in accepting that the conditions of service would include the provision relating to dismissal or to take disciplinary action. But we find it difficult to see why even where there is a combination of all these three powers it should necessarily cover the entire disciplinary field in spite of the provisions to the contrary in the enactment. In the first instance, the aforesaid three powers are not absolutely vested in the Governor. The power of appointing District Judges and Judges subordinate to the District Judges and Judges subordinate to the District Judges no doubt rests with the Governor, but the recruitment has to be made according to the rules and in consultation with the Public Service Commission and the High Court. The power of dismissal of District Judges has to be read in Arts. 233 and 234 of the Constitution with the aid of S. 16 of the General Clauses Act. The exercise of the power of dismissal will therefore have to be in the same manner as the exercise of the power of appointment and therefore even the power of dismissal will have to be exercised by the Governor in consultation with the High Court. The power of making rules relating to recruitment and conditions of service is not the Governor's absolute power. Primarily the power is conferred on the legislature. It is only by way of a transitional provision that the Governor is empowered to make rules till the enactment of the legislature has been made. It will thus be seen that the power of the Governor in this matter is not absolute. Further, as we have stated, Art. 235 on its true construction vests disciplinary jurisdiction in the High Court. It is, therefore, not possible to accept Sri Kotwal's argument. On the other hand, it would be reasonable to hold that the power vested in the High Court for taking disciplinary action against District Judges and Judges subordinate to the District Judges is limited only to the extent it has been limited by other provisions which could legitimately be read in other articles and not by process of any artificial implication. The decision in : 2SCR1331 on which reliance has been placed by Sri Kotwal in this respect is not much assistance to him. In that case the question was whether the High Court had power to dismiss the Registrar of the High Court, and after reviewing judicial history and having regard to the fact that the appointing authority was the Chief Justice and that the Chief Justice had the power to make rules, their lordships of the Supreme Court held that the power to take disciplinary action against the staff of the High Court rested exclusively with the Chief Justice. It would be noticed that under Art. 229 absolute power vests in the Chief Justice in the matter of appointments of officers and servants of the High Court. He has not to consult anybody in this matter. It would also be noticed that there is no other article in the Constitution conferring power in respect of disciplinary action on any other authority. In our opinion, therefore, reading all these articles together, the position that emerges is :
(1) That the disciplinary jurisdiction over District Judges and Judges subordinate to them vests exclusively in the High Court except making an order of dismissal or removal.
(2) It follows that the decision in the matter of starting a departmental enquiry or action for misconduct against a District Judge or a Judge subordinate to District Judge vests exclusively with the High Court.
(3) The power of dismissal and removal of District Judges and Judges subordinate to District Judges vests in the Governor.
(4) The exercise of the aforesaid power of dismissal and removal of District Judges by the Governor has to be in consultation with the High Court.
28. The question that next arises is whether in cases where dismissal or removal is a probable consequence the Governor has to be associated with the departmental enquiry at the stage of appointing an enquiry officer or at the stage of appointing an enquiry officer or at the stage after the High Court on consideration of the report of enquiry officer has come to a tentative conclusion that the charges have been proved and that the penalty of dismissal or removal should be imposed on the delinquent civil servant. It has been Sri Phadke's contention that it is the High Court and the High Court alone that has exclusive jurisdiction to appoint enquiry officer and it is only after the High Court comes to a tentative conclusion that the charges have been proved and that the penalty that is required to be imposed is dismissal or removal, that the Governor has to be associated. Sri Phadke has read the judgment of the Special Bench of the Calcutta High Court in : (1961)IILLJ312Cal in support of his argument. Facts in that case were peculiar. A senior member of the West Bengal Judicial Service Officiating in the higher judicial service and an Additional District Judge, at the fag-end of his career of service extending over a quarter of a century and when about to reach 55 years, was served with a notice to appear before the Disciplinary Tribunal and its finding was dismissal from service by an order of the State Government. The High Court had not been conducted disciplinary proceedings nor was it consulted by the Government before the Disciplinary Tribunal was appointed by the Government to conduct enquiry. All that was done by the Government was to present to the High Court accomplished facts that charges had been framed against the civil servant and result obtained on the enquiry held by the Anticorruption Department and that the appointment of the Commissioner of Burdwan Division had been made to hold a departmental enquiry under rule 55 of the Civil Services (Classification, Control and Appeal) Rules. The aforesaid member of the judicial service had challenged the order on various grounds, one of the grounds being that the control over District Court and Courts subordinate thereto was vested in the High Court under Art. 235 of the Constitution and the authority competent to take disciplinary proceedings against him or to deal with him was the High Court and not any other authority. A Special Bench was constituted to consider the contentions raised including the aforesaid one. After considering the various articles of the Constitution, to which we have already referred, Justice Sri P. B. Mukharji, on p. 323 of the judgment made the following observations on which very strong reliance has been placed by Sri Phadke. These observations read : (1961)IILLJ312Cal :
'It is no doubt true that under Art. 311 read with Arts. 310, 233 and 234 of the Constitution the appointing authority in respect of a member of the judicial service of a State being the Governor, the actual dismissing authority must also be the Governor. That only means that the actual order of dismissal has to be made by the Governor. It does not, however, mean that in supersession of the control of the High Court under Art. 235 of the Constitution the Governor or the Government will to be entitled to conduct disciplinary proceedings or set up Disciplinary Tribunal apart from the High Court. Different articles of the Constitution on the same subject should, wherever possible, be read consistently and not in resistance with one another. The best reconciliation of these different articles of the Constitution will lie in the High Court conducting the disciplinary enquiry and sending its report at the conclusion of the enquiry to the Government to make the appropriate order of dismissal or removal. That the Government may not, in a particular case, accept the report and recommendations of the High Court exercising disciplinary jurisdiction, cannot alter the interpretation of the Constitution when it provides dual authority first by vesting control in the High Court under Art. 235 and secondly by resting appointment, tenure and dismissal with the Government under Arts. 233, 234, 310 and 311 of the Constitution. This duality is not an unmixed evil but is an example of that wholesome Constitutional principle of checks and balances so that no one institution can afford to be tyrannical the exercise of its power and thereby ensuring the much needed security of public services in India.'
29. With utmost respect, in our opinion, the mode of reconciliation mentioned in the aforesaid observations had the tendency to affect effective exercise of the power of dismissal and removal resting with the Governor. It has been held that the Governor should be associated after the High Court has considered the report of the enquiry officer and reached a tentative conclusion that the charges have been proved and the penalty of removal of or dismissal is called for. Article 311 enjoins a duty on the appointing authority or an authority subordinate to him, in whom rests the power of dismissal or removal, to give a reasonable opportunity to the person to show cause why proposed action should not be taken against him. It has now been well-settled by various decisions of the Supreme Court that this opportunity consists of two stages : the first stage is to give an opportunity to the person to show that the charges framed against him are not well-founded. In other words, the allegations on which the charges are framed are not true and, the second stage that even if the charge are held proved, the proposed penalty is uncalled for. The latest decision of the Supreme Court in this respect so far as we are aware is the one in Bachhittar Singh v. State of Punjab : AIR1963SC395 . In that case their lordships were considering whether a departmental enquiry is divisible in two stages :
(a) the enquiry which involves a decision of the question whether the allegations made against the servant are true or not, and
(b) taking action (i.e., in case the allegations are found to be true) whether the servant should be punished or not and if so in what manner. Their lordships observed : 'There is just one continuous proceeding though there are two stages in it. The first is coming to a conclusion on the evidence as to whether the charges alleged against the Government servant are established or not and the second is reached only if it is found that they are so established. The stage deals with the action to be taken against the Government servant concerned.'
30. Both these stages are equally judicial. It is clear that a departmental enquiry though in two stages is one continuous proceeding. The Governor being the authority empowered to dismiss or remove and Art. 311 enjoining a duty on him to give the civil servant a reasonable opportunity in this respect, in our opinion, he has to be associated with the departmental enquiry from the first stage and not at the second stage. Sri Phadke, however, contends that it is not possible, merely on considering the allegations against a civil servant, that the punishment required to be imposed on him would be one of dismissal or removal. That conclusion could only be reached after the departmental enquiry has been completed and the High Court has considered the report of the enquiry officer. There is therefore no scope for associating the Governor at a stage prior to the second stage. We find it difficult to accept the aforesaid argument of Sri Phadke as one of general application. It may be that in some cases it may not be possible to say that the allegations if proved would necessarily require imposition of the penalty of dismissal or removal, but on the other hand, there may be clear cases where the allegations if proved would call for no penalty other than removal or dismissal. For instance, a case where the allegation against a judicial officer is one of corruption. There is hardly any room to assume that a judicial officer against whom charges of corruption have been established should still be retained in judicial service. Of course, each case will depend on its own facts. In our opinion, therefore, where on preliminary investigation the High Court comes to the conclusion that the probable consequence of the charges against a judicial officer being proved would be one of dismissal or removal of the judicial officer, the course that should be adopted would be to refer the matter to the Governor recommending appointment of an enquiry officer which is the first stage of giving a reasonable opportunity to a public servant.
31. Turning to the facts of the present case, the High Court on receiving certain information directed the District and Sessions Judge, Amravati, Sri Hadole and also the Anti-corruption Branch, to hold a confidential enquiry into the conduct of the petitioner. These officers, after making a confidential enquiry, submitted their report to the High court. The confidential report received by the High Court disclosed a prima facie case of corruption on the part of the petitioner, calling for a regular departmental enquiry being started against him. The charges framed indicate that the confidential enquiry disclosed that the petitioner had demanded 20 seers of ghee from one Vasudeo Vithal Chimote of Amravati as consideration for favouring him in the matters relating to certain appeals pending before him and had in fact accepted 5 seers of ghee from him after arguments in the appeals were heard by him but prior to the decisions of these appeals. The other allegation was that he had accepted two tins of ghee from one Atmaram Tukaram Zanzad of Badnera whose appeals had been decided by him and whose suits against the same parties were also pending before him. The allegation was that the petitioner's peon had gone to Badnera to fetch ghee tins and brought the same from the said Atmaram Zanzad. There were also other allegations against him that he was knowingly associating himself with the litigants whose matters were pending before him. These being the charges and allegations against the petitioner, the necessary consequence, if these allegations were proved, petitioner from service. It is in these circumstances that the High Court had recommended to the State Government that a departmental enquiry should be started against the petitioner and that the District and Sessions Judge, Nagpur, should be appointed as enquiry officer to conduct this enquiry. These recommendations of the High Court were in their entirety accepted by the State Government and accepting these recommendations of the High Court, the Governor had appointed Sri Seth, District and Sessions Judge, Nagpur, to hold enquiry, on September 30, 1959. It would be noticed that the Governor had appointed the enquiry officer to hold the departmental enquiry on the recommendations of the High Court. Disciplinary proceedings thus were initiated by the High court and not by the Governor. In the circumstances, for the reasons stated above, in our opinion, the order made by the Governor is not one without jurisdiction.
32. Other two decisions on which reliance has been placed by Sri Phadke do not run counter and are not in conflict with the view taken by us. It may be stated that both these decisions relate to disciplinary proceedings against one and the same man, the petitioner, coming to the High Court by a writ petition both against the order of suspension during the pendency of the enquiry and later against the order of dismissal. It is true that the departmental enquiry there was held by a Judge of the High Court appointed by the Chief Justice. But it has to be kept in view that the rules framed by the State provided that departmental enquiry against a judicial officer was to be held by the High Court. It is also to be noticed that the decision does not go to the extent of holding that the appointment of the enquiry officer is exclusively within the jurisdiction of the high Court and therefore the appointment of the enquiry officer by the Governor is without jurisdiction. In this decision it has been held that disciplinary jurisdiction is conferred on the High Court under Art. 235 of the Constitution. With respect we concur with this view and we have already so held. The principle has been succinctly laid down by Justice Sri Subba Rao in : AIR1955AP65 in the following terms :
'To illustrate, the High Court has control and superintendence over subordinate Courts. This power necessarily implies that the High Court can take disciplinary action against Subordinate Judges in appropriate cases. The control will certainly be ineffective if the authority exercising the control cannot take disciplinary action against a person under its control. To put it in other words, a superior authority cannot control the actions of a subordinate if he cannot take disciplinary action against him.'
33. With respect, we concur in this view.
34. But, in our opinion, there is no violation of this principle when initiation of departmental proceeding has taken by the High Court and thereafter an enquiry officer has been appointed by the Governor at the instance of the High Court. The facts in the Calcutta case were entirely different where the |High Court was not even consulted before a departmental enquiry was ordered and an officer to hold an enquiry was appointed.
35. For reasons stated above, the first contention raised Sri Phadke must fail.
36. This brings us to the second contention raised by Sri Phadke and that is that the departmental enquiry is vitiated inasmuch as it had been conducted in contravention of the principles of natural justice. The contention is founded on certain allegations made in the first return filed on behalf of the respondent. This contention has been for the first time raised in an application for amendment which we have allowed and had given the respondent an opportunity of filing a return in respect of the amendment allowed. The averment in the first return of the respondent on which this contention is based is in the following terms :
'6. ... I further say that the enquiry officer, Sri Seth, forwarded his report to the High Court for onward despatch to the Government. The High Court, while forwarding the report to the Government, made their own observations on the findings of the enquiry officer and also on the question of punishment. After the receipt of the enquiry officer's report along with the remarks of the High Court a show-cause notice was issued to the petitioner. In reply to the said show cause notice the petitioner filed a long reply. Thereafter the Government again made a reference to the High Court requesting them to offer their remarks about the various contentions raised by the petitioner in his reply to the show-cause notice. The High Court, thereupon, after fully considering the contentions raised by the petitioner in his reply to the show-cause notice, offered their own observations on each point. After these observations of the High Court, were communicated to the Government, the question of punishment was considered and then the Government referred the matter to the Public Service Commission who also agreed that the charges against the petitioner had proved and that the petitioner should be dismissed from service. It was after this that the final order of dismissal was passed by the Governor of Maharashtra who was empowered to pass the said order.'
37. It is the argument of Sri Phadke that the admitted position is that the observations of the High Court on the report of the enquiry officer as well as the observations of the High Court point by point on the reply sent by the petitioner to the show-cause notice were considered that the penalty of dismissal should be imposed on the petitioner. According to Sri Phadke, the aforesaid observations of the High Court was a material on which the Governor had relied against the petitioner in holding that the charges were proved and also in imposing the penalty of dismissal on him. These observations were not shown to the petitioner and that contravened the principles of natural justice, resulting in vitiating the entire departmental proceeding and the order of dismissal made by the Governor. Reliance is placed by Sri Phadke on the following decisions :
Union of India v. T. R. Verma : (1958)IILLJ259SC : Ramrao Laxmikant v. Accountant-General, Maharashtra : (1963)ILLJ428Bom ; Vasant Raghunath v. State of Maharashtra : (1963)ILLJ449Bom ; R. v. Architects' Registration Tribunal (1945) 2 All E.R. 131; Brijlal Manilal & Co. v. Stafford Borough Justices (1962) 1 All E.R. 540.
38. Principles of natural justice have been laid down by their lordships of the Supreme Court in : (1958)IILLJ259SC (vide supra). At pp. 263-264 their lordships observed :
'Now, it is no doubt true that the evidence of the respondent and his witnesses was not taken in the mode prescribed in the Evidence Act; but that Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry, and if they do so, their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtain in a Court of law. Stating it broadly and without intending it to be exhaustive, it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed.'
39. It is not in dispute that charges had been framed against the petitioner and were communicated to him along with the allegations on which the charges were framed. He had been given an opportunity of filing a written statement in reply to the charges framed. Documents asked for by him were made available to him. A lawyer was allowed by the enquiry officer. The witnesses examined against him were examined in his presence. He had an opportunity of cross-examining them. The petitioner was also given an opportunity to lead evidence and in fact he has examined one witness whom he wanted to examine. The petitioner was also allowed to make an oral statement before the enquiry officer in his defence in addition to the written statement filed by him. It is after that that the enquiry officer had submitted his report to the Governor through the High Court in which he held that the charge of corruption relating to demand and acceptance of ghee as a consideration from Chimote was established against him, though other two charges were not established against him. It is, after consideration of this report, that the petitioner was given a show-cause notice why the proposed penalty of dismissal should not be imposed on him. Cause shown by the petitioner in response to the show-cause notice was also considered by the Governor. The only grievance of the petitioner is that the observation of the High Court on the report of the enquiry officer as well as on the cause shown by their petitioner were not communicated to him. The question, therefore, that arises is whether the observations made by the High Court was a material relating to which the petitioner was entitled to an opportunity of offering his explanation is respect of these observations. Sri Kotwal first contends that the material which is required to be shown and explained by the delinquent is only the material that is taken into consideration at the time of the departmental enquiry. Duty to act in a quasi-judicial manner is imposed on the authority that holds a departmental enquiry. After the departmental enquiry is concluded and Governor is dealing with the report of the enquiry officer after the report is submitted, the act of imposing penalty is purely an administration act. The material which the Governor takes into consideration in the discharge of that administrative act, it is not necessary for him to disclose to the delinquent. In short, the argument of Sri Kotwal is, after the departmental enquiry concludes, the duty of the disciplinary authority to act quasi-judicially ceases and thereafter he acts only in administrative capacity and not in quasi-judicial capacity. Sri Kotwal has in this connexion referred to us a number of decisions :
Board of Education v. Rice 1911 A.C. 179; Local Government Board v. Arlidge 1915 A.C. 120; Denby (William) & Sons, Ltd. v. Minister of Health (1936) 1 K.B. 337; Robinson v. Minister of Town and Country planning (1947) 1 All E.R. 851; Johnson & Co., Ltd. v. Minister of Health (1947) 2 All E.R. 395.
40. Sri Kotwal, in the alternative, contends that in consulting the High Court about its observations, the Governor has only complied with constitutional requirement of Art. 233 which requires the Governor to consult the High Court. Consultation with the High Court constituted part of deliberation on the report of the enquiry officer and on the cause shown by the petitioner. In these circumstances, it cannot be a material relating to which the petitioner is entitled to have an opportunity of explaining. And lastly, Sri Kotwal contends that, at any rate, the observations of the High Court is a privileged document which cannot be disclosed in the interest of public policy. He has in this connexion referred to the following decisions :
State of Uttar Pradesh v. Manbodhan Lal : (1958)IILLJ273SC ; Duncan v. Cammell Laird & Co. 1942 A.C. 624 State of Punjab v. Sodhi Sukhdev Singh : 2SCR371 ; Har Prasad Gupta v. State of Uttar Pradesh : (1964)ILLJ607All .
41. Sri Phadke, on the other hand, contends that the enquiry is quasi judicial in nature right from the stage of enquiry to the stage of imposition of penalty. Imposition of penalty by the Governor is nor an administrative act but it is a quasi-judicial act and the Governor must act in a judicial manner. In not disclosing the observations of the High Court to the petitioner and giving him an opportunity to explain them, the Governor has acted contrary to the principles of natural justice. The petitioner has made no grievance on the ground that the observations of the Public Service Commission were not shown to him, because the constitutional requirements required the Governor to consult the Public Service Commission. There was however no obligation on the Governor to consult the High Court. The Governor, therefore, had to supply these observations to the petitioner. Sri Phadke conceded that if we come to the conclusion that the constitutional requirement is that the Governor must consult the High Court in imposing penalty of dismissal or removal from service of a civil servant, then the petitioner is not entitled to complain that principles of natural justice had been violated on account of nondisclosure of the observations of the High Court. Lastly, Sri Phadke argued that there was no privilege in respect of these observations of the High Court; in the event, the Constitution did not require that the High Court should be consulted. It is his argument that the observations of the High Court must necessarily have influenced the mind of the Governor in coming to the conclusions whether the guilt is established or not and whether penalty of dismissal should be imposed or not. The observations of the High Court are in the nature of reasons supplied to the Governor for coming to the conclusion in these matters. There can hardly be any privilege in this respect.
42. We have already held that in our opinion the power conferred on the Governor by Art. 233 read with Art. 310 and S. 16 of the General Clauses Act to dismiss or suspend a civil servant has to be exercised in the same manner as the power of appointment under Art. 233 is to be exercised, that is, in consultation with the High Court. In the circumstances, the observations form part of the consultation provided for in Art. 233 of the Constitution. That being the position, and Sri Phadke having conceded that if the constitutional requirement is that the High Court should be consulted, then the petitioner could make no grievance for nondisclosure of these observations to him. In the circumstances, it is not necessary to deal in detail with rival contentions raised by counsel for the parties. We would, however, deal with these contentions in brief though not in detail. We have already referred to the decisions of their lordships of The Supreme Court in : AIR1963SC395 (vide Supra) in which it has been held that both stages of a departmental enquiry, that is, the enquiry which involves a decision of the question whether the allegations made against a public servant are proved or not and the decision of the question of the action to be taken against him on reaching the conclusion that the allegations have been established are both judicial in nature. This being the principle laid down by their lordships of the Supreme Court, we find it difficult to accept Sri Kotwal's contention that after the report of the enquiry officer is submitted to the Governor is purely administrative in nature no requiring him to act according to the principles of natural justice. It may be that the act of imposing penalty is an administrative act but nonetheless in view of the aforesaid decision of their lordships there is a duty cast on the Governor to act according to the principles of natural justice in performance of that duty. He has to act in a quasi-judicial manner.
43. In the English decisions to which reference was made the question considered was whether the report received by the Minister of the Government in respect of acquisition of certain lands by local bodies for purposes of development should be made known to the persons whose lands were being acquired. In those cases the report had not been shown to the persons whose lands were required but was taken into consideration by the Minister in deciding on appeal the question whether the decision taken by the local bodies for the acquisition of lands was proper or not. The decisions go to say that in dealing with an appeal against the decision of the local bodies for acquisition of lands, the Minister was performing an administrative function and it was not incumbent on the Minister to disclose the report. An analogy of these cases would have no application to the facts of the present case.
44. This brings us to the cases on which reliance has been placed by Sri Phadke.
45. The question which was considered in State of Madhya Pradesh v. Chintaman A.I.R. 1961 S.C. 1623 was the grievance made that the document which the party required for purposes of cross-examining the witnesses of other side was not supplied to the public servant therefore a reasonable opportunity was not afforded to him. It was held by their lordships that the failure to supply that document hampered the party from cross-examining the witnesses of other side and had therefore resulted in the denial of a reasonable opportunity afforded in Art. 311 of the Constitution.
46. In State of Mysore v. Manche Gowda : 4SCR540 the disciplinary authority took into consideration the previous record of the Government servant and on the basis of that previous record it had proposed to impose certain penalty. The previous record was not shown to the Government servant. In the circumstances, it was held that the failure to supply the previous record which had been taken into consideration for the purpose of imposing penalty was against principles of natural justice and therefore had resulted in denial of a reasonable opportunity to the Government servant.
47. In : (1963)ILLJ428Bom , instructions and directions of a higher official were taken into account by the disciplinary authority in determining the guilt of the Government servant without disclosing those instructions and directions to him. It was held that the order of dismissal passed was vitiated as the petitioner had no reasonable opportunity of knowing the instructions and directions which were taken into consideration by the disciplinary authority in passing the order of dismissal.
48. In : 7SCR97 (vide supra), in consideration of an application for review relating to grant of a mining licence, the Board of Revenue had considered the report of the state Government which they called for without disclosing the report to the person who was making a grievance against refusal to grant licence to him. In the circumstances, it was held that a reasonable opportunity was denied to him.
49. Remaining two English cases on which reliance has been placed by Sri Phadke stand in a different class.
50. The facts in (1945) 2 All E.R. 131 (vide supra) were that an engineer and surveyor had applied to the Architects' Registration Council to be registered as an architect and he gave names of two persons to whom a reference could made. The admission committee refused to register him. The architect appealed to the tribunal of appeal. The tribunal dismissed the appeal but in arriving at their decision the tribunal took into account certain other documents which were not divulged to the architect. It was held that the tribunal which was enjoined with a duty to act in a quasi-judicial capacity acted improperly in accepting and considering the evidence additionally obtained without disclosing the same to the architect.
51. In (1962) 1 ALL E.R. 540 (vide supra) after the conclusion of the hearing of a charge of larceny by the justices, the clerk to the justices handed a note to the chairman before the justices retired to consider their verdict. The note contained in substance an argument on the facts for the justices to convict the person charged. It was held that it was hardly an improper act on the part of the clerk to hand over the note to the justices. The conviction was quashed on the ground that it has always been the principle of English law that justice should manifestly be seen to be done. Handing over of the note went against the principle.
52. Considering these decisions together, in our opinion, the principle that follows is that the authority which is enjoined with a duty to act in a quasi-judicial manner must disclose to the person against whom action has been taken material which in the nature of evidence on the acceptance or rejection of which turns the decision as to the guilt or innocence of the person against whom an enquiry is held or against whom an action is being taken. Evidence tendered to establish a case must not be received behind the back of the person inasmuch as that would person of rebutting that evidence. The observations of the High Court cannot be said to be a part of the evidence going to establish the guilt or innocence of the petitioner. On the contrary, in view of the constitutional requirements which require the Governor to consult the High Court, the observations form part of the deliberations in the matter of imposing penalty on the petitioner. Non-disclosure of these observations to the petitioner, in our opinion, therefore, did not constitute any contravention of the principles of natural justice.
53. Lastly, we agree with the learned Government Pleader that the observations of the High Court would be privileged document and therefore no complaint can be made of non-disclosure of that document.
54. In : 2SCR371 (vide supra) a complaint was made against nondisclosure or supply of the remarks of the Public Service Commission by the civil servant. On behalf of the Government, privilege was claimed and it was held by the Supreme Court that the report of the Public Service Commission was a privileged document to the disclosure of which a public servant was not entitled.
55. In : (1964)ILLJ607All (vide supra) a question arose whether the correspondence between the High Court and the Government relating to the confirmation of a judicial officer was a privileged communication. On behalf of the petitioner it was claimed that he was entitled to its disclosure. It was his case that the High Court had recommended his confirmation in the past but the Government wrongly did not confirm him. On behalf of the Government, privilege was claimed and it was held that the correspondence was a privileged document.
56. The second contention raised by Sri Phadke also for the reasons stated above must fail.
57. Taking all the facts and circumstances of the case, in our opinion, the petitioner had a reasonable opportunity of showing cause against the action proposed to be taken against him. After considering the confidential report of Sri Hadole, the High Court had come to the conclusion that it was necessary to hold a departmental enquiry against the petitioner, the allegation made against the petitioner being one of corruption. Recommendation was made to the Governor by the High Court to hold a departmental enquiry and appoint Sri Seth, District and Sessions Judge, Nagpur, as the enquiry officer. The Government accepted the recommendations of the High Court and Sri Seth was appointed as an enquiry officer. It is not in dispute that Sri Seth conducted the enquiry in good faith and with all the fairness following fully the procedure which he had to follow under rule 5 of the rules. The petitioner was served with a chargesheet along with the allegations on which the charges were founded. Whatever documents the petitioner wanted to have produced were produced. Witnesses were examined in his presence. He had an opportunity of cross-examining them. Throughout he was allowed assistance of a legal advisor. Witnesses which the petitioner wanted to be examined in his defence were examined. The petitioner wanted to make an oral statement in addition to the written statement filed by him and that was allowed, recorded and considered. After considering the entire evidence and the material before the petitioner was guilty of corruption on one count. After consultation between the Governor and the High Court, a show-cause notice was given to the petitioner asking him to show cause why penalty of dismissal should not be imposed on him. The petitioner showed cause, that was considered by the Governor and the Governor in consultation with the High Court and the Public Service Commission had imposed the penalty. These being the circumstances of the case, in our opinion, there had been no infringement of the provisions of Art. 311 of the Constitution. The only grievance made by the petitioner was that the observations of the High Court made on the report of Sri Seth as well as on the reply of the petitioner to show-cause notice were not disclosed to him. We have held that the objection raised is not tenable. The observations of the High Court was not a material which was in the nature of evidence establishing the guilt or otherwise of the petitioner. On the other hand, the observations were made in the discharge of the constitutional duty cast on the High Court. Apart from this, as we have said, the observations is a privileged document, to the disclosure of which the petitioner is not entitled to. If disclosure of documents of this type is permitted, it may possibly result in affecting free and frank expression of opinion which is very essential in the interest of public policy.
58. And this brings us to the last contention raised on behalf of the petitioner. It is stated in ground (vi)(a) of the petition in the following terms :
'The appellate order dated October 16, 1962 passed by the Government is vitiated by contravention of the principles of natural justice as will be seen from what follows : (a) The appeal against the order of dismissal passed by the Government of the State, under the rules, lies to the Governor of the State. Such an appeal against disciplinary punishment is intended to be a fresh and independent hearing of the case of the officer in the light of the objections raised in the memo of appeal. In the present case the Governor, who must be deemed to have passed the appellate order, had, as Chief Justice, apparently already formed a clear opinion against the petitioner while recommending the holding of a departmental enquiry against the petitioner. Thus the appeal should have been heard by an authority other than Government, who actually passed this order.'
59. Reliance is placed on rule 57 of the Civil Services (Conduct, Discipline and Appeal) Rules.
60. Sri Kotwal, on the other hand, contends that the petitioner had no right of appeal under rule 57. The original order of dismissal itself was passed by the Governor. That being the position, there could be no appeal to the Governor against his own order. In our opinion, the argument of Sri Kotwal is well-founded. Rule 57 reads as under :
'A member of a Provincial Service, or a member of a Specialist Service under the administrative control of the Local Government of a Governor's Province, may appeal to the Governor from an order passed by the Local Government.'
61. It is well-settled that an appeal is a creature of a statute and unless a right of appeal is conferred by a statute it is not open to any person to claim that he has any right of appeal as such. Sri Phadke has not been able to show us any provision except rule 57 which conferred a right of appeal on a member of a Provincial Service, to which the petitioner belonged. In order to bring his case within rule 57, the petitioner must establish two conditions :
firstly, he must establish that he was a member of a provincial Service which was under the administrative control of the Local Government of a Governor's Province, and
secondly, he must establish that the order against which seeks to file an appeal is the order made by the Local Government.
62. Both these conditions, in our opinion, are not satisfied in the instant case. It has not been the case of the petitioner that he is under the administrative control of the Local Government of a Governor's Province. On the other hand, all the arguments advanced by Sri Phadke on the first contention wholly militate against such a position. Nor is the Government claiming in the instant case such position. We have already said that Art. 227 confers the right of superintendence on the High Court over all Courts and it was held by their lordships of the Supreme Court in Hari Vishnu Kamath v. Ahmed Ishaque : 1SCR1104 that superintendence is both administrative and judicial.
63. The first condition, therefore, is clearly not satisfied. The other against which an appeal is preferred also is not one made by the Local Government. The order of dismissal is document 9 filed along with the petition. The order in terms says that the Governor of Maharashtra is hereby pleased to dismiss Sri S. M. I. Alvi, Assistant Judge and Additional Sessions Judge (on leave), from Government service with effect from August 30, 1961. The order is also signed by the Secretary to the Government of Maharashtra, Law and Judiciary Department, by order and in the name of the Governor of Maharashtra. Clause (2) of Art. 166 of the Constitution provides that orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor. The order of dismissal by the Governor had been authenticated by the Secretary to the Government of Maharashtra, Law and Judiciary Department. It has not been shown that the Secretary was not the person authorized to authenticate the order. In the circumstances, it has to be accepted that the order has been properly authenticated. It therefore cannot be said that the order has not been made by the Governor. This being the position, in one opinion, rule 57 had no application to the facts of the present case. The petitioner, therefore, had no right of appeal against the order of dismissal.
64. We may state that the return filed by the respondent says that the memo of appeal was considered by the Council of Ministers as a memorial and the Council of Ministers was satisfied that there was no injustice done to the petitioner.
65. The third contention of Sri Phadke must also fall.
66. These are all the contentions which have been raised before us by the petitioner. We may state that the contention raised in ground 5 was not pressed before us by Sri Phadke and, in our opinion, rightly.
67. In the result, the petition fails and the rule is therefore discharged. We, however, make no order as to costs.