Skip to content


Abdur Rahim Ahmed Vs. State of Mysore and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKarnataka High Court
Decided On
Case NumberWrit Petition No. 887 of 1965
Judge
Reported inILR1966KAR124; (1966)ILLJ816Kant; (1965)2MysLJ215
ActsConstitution of India - Articles 226, 227, 233, 233(1), 233(2), 234, 235, 309, 310, 310(1) and 311(2); Mysore Civil Services (Classification Control and Appeal) Rules, 1957 - Rules 2, 8, 8(3), 9, 9(1), 9(2), 9(3), 10, 10(1), 10(8), 11, 11(1), 11(2) and 11(3); Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules
AppellantAbdur Rahim Ahmed
RespondentState of Mysore and anr.
Excerpt:
- land acquisition act, 1894.[c.a. no. 1/1894]. section 6 (1): [n.k. patil, j] final notification under petitioner sought for acquisition of land for the development educational activities failure of the petitioner to deposit the acquisition cost as required under the relevant statute non-compliance of the mandatory requirement held, the final notification shall be issued on or before the expiry of one year from the date of issuance of preliminary notification and the cost of acquisition is to be deposited before issuance of final notification. as the petitioner could not deposit the cost of the acquisition proceedings within the prescribed time, the proceedings has been delayed and notification under section 6(1) could not be issued before the expiry of one year from the date of.....orderhegde, j. 1. in this writ petition under art. 226 of the constitution, the petitioner prays that this court may be pleased to quash the order of appointment of respondent 2 as the 'specially empowered authority,' as per the order of the governor in no. law 284 cet. 64, dated 11 january, 1965, and further quash all proceedings of respondent 2 held in pursuance of the above order by issuing a writ of certiorari or such other appropriate writ, order or direction as the court deems fit. 2. the material facts of this case are these : in the year 1943 the petitioner was recruited as a district munsif by the madras public service commission. thereafter, he was serving in the judicial department of the then madras state. he was promoted as a subordinate judge in the year 1954. at the time of.....
Judgment:
ORDER

Hegde, J.

1. In this writ petition under Art. 226 of the Constitution, the petitioner prays that this Court may be pleased to quash the order of appointment of respondent 2 as the 'specially empowered authority,' as per the order of the Governor in No. LAW 284 CET. 64, dated 11 January, 1965, and further quash all proceedings of respondent 2 held in pursuance of the above order by issuing a writ of certiorari or such other appropriate writ, order or direction as the Court deems fit.

2. The material facts of this case are these : In the year 1943 the petitioner was recruited as a District Munsif by the Madras Public Service Commission. Thereafter, he was serving in the Judicial Department of the then Madras State. He was promoted as a Subordinate Judge in the year 1954. At the time of the reorganization of the State on 1 November, 1956 he was allotted to the new State of Mysore. In this State the post of a Subordinate Judge has been equated to that of a civil Judge. From the petitioner's affidavit it is gathered that his claim for promotion as a District Judge was overlooked and that several of the juniors have been promoted as District Judges, while he still continues to be a civil Judge. This circumstance appears to have greatly displeased the petitioner.

3. In the beginning of 1964 he was serving as civil Judge at Karwar in North Kanara district. On 3 June, 1964 he applied for and obtained thirty day's commuted leave on ground of illness. He extended that leave another thirty days. But instead of joining duty on expiry of the said leave, he intimated the District Judge, North Kanara, that he would be applying for a further extension of leave by one month. On 7 August, 1964 the Chief Justice passed an order directing the petitioner to join duty at once and if he did not join duty within seven days, action would be taken against him. He failed to comply with that order. He has not yet joined duty. In this connection an enquiry was held by Narayana Pai, J. That enquiry disclosed a prima facie case to initiate disciplinary proceedings against the petitioner.

4. Accordingly, the High Court recommended to the Governor to initiate disciplinary proceedings against the petitioner under Rule 11 of the Mysore Civil Services (Classification Control and Appeal) Rules, 1957, to be hereinafter referred to as the Classification, Control and Appeal Rules. Further it recommended to the Governor that Sadasivayya, J., may be appointed as the specially empowered authority to hold the enquiry. The Governor accepted the recommendations of the High Court. He ordered an enquiry against the petitioner under rule 11 of the Classification, Control and Appeal Rules. Further he appointed Sadasivayya, J., as the specially empowered authority to hold the enquiry against the petitioner. The specially empowered authority commenced the enquiry against the petitioner. Even some witnesses have been examined. In the meanwhile this writ petition was filed.

5. The petitioner's contention is that the Governor had no authority to direct the holding of a departmental enquiry against a member of the Judicial Service. It was further urged on his behalf that rule 11 of the Classification, Control and Appeal Rules to the extent it empowers the Governor to initiate disciplinary proceedings against a member of the Judicial Service, is ultra vires of Art. 235 of the Constitution.

6. It was not disputed that the impugned enquiry was held in accordance with the Classification, Control and Appeal Rules. As per rule 2(a) of those rules, the 'appointing authority' in relation to a Government servant means, the authority empowered to make appointments to the service of which the Government servant is for the time being a member or to the grade of the service in which the Government servant is for the time being included. 'Government servant' is defined in rule 2(d) as meaning 'a person who is a member of the civil services of the State of Mysore, or who holds a civil post in connexion with the affairs of the State of Mysore and includes any person whose services are temporarily placed at the disposal of the Government of India, the Government of another State, a local authority, any person or persons whether incorporated or not and also any person in the service of the Central or another State Government or a local or other authority whose services are temporarily placed at the disposal of the Government of Mysore. Civil services of the State are classified into class I, class II, class III and class IV. Rule 6 of the Classification, Control and Appeal Rules says that the State Civil Services, classes I, II, III and IV, shall consist of the services and posts specified in Schs. I, II and III. Schedule I includes the Mysore Judicial Service, to which the petitioner belongs. Rule 7(1) says :

'Save as otherwise provided, all first appointments to the State Civil Services, classes I and II, shall be made by the Government.'

Part IV to the Classification, Control and Appeal Rules deals with discipline and penalties. Rule 8 enumerates the nature of penalties that may be imposed on Government servants. They are :

'(i) fine in the case of Government servants belonging to State Civil Services, class IV;

(ii) censure;

(iii) withholding of increments or promotion;

(iv) recovery from pay of the whole of part of any pecuniary loss caused by negligence or breach of orders to the State Government, or to the Central Government, any other State Government, any person, body or authority to whom the service of the officer had been lent;

(v) reduction to a lower service, grade or post, or to a lower time-scale or to a lower stage in a time-scale;

(vi) compulsory retirement;

(vii) removal from service which shall not be a disqualification for future employment;

(viii) dismissal from service which shall ordinarily be a disqualification for future employment.'

7. Rule 9 designates the disciplinary authorities. Sub-rule (1) of that rule says :

'The Governor may impose any of the penalties specified in rule 8 on any Government servant.'

Sub-rule (2)(a) of that rule authorizes the High Court, without prejudice to the provisions of sub-rule (1), but subject to the provisions of sub-rule (3), to impose on Government servants belonging to the Mysore Judicial Service holding posts inferior to the post of a District Judge, any of the penalties specified in Cls. (ii), (iii) and (iv) of rule 8. Sub-rule (3) of rule 9 provides that notwithstanding anything contained in that rule, no penalty specified in Cls. (v) to (viii) of rule 8 shall be imposed by any authority lower than the appointing authority. Rule 10 deals with suspension of Government servants. For our present purpose, only sub-rule (8) of that rule is relevant. That rule provides that notwithstanding anything contained in sub-rule (1) of rule 10, the High Court of Mysore may impose suspension pending enquiry on members of the Mysore Judicial Service holding posts inferior to the post of District Judges.

8. Rule 11 lays down the procedure for imposing major penalties. Sub-rule (1) of that rule says :

'Without prejudice to the provisions of any law applicable to the Government servant, no order imposing on a Government servant any of the penalties specified in Cls. (v) to (viii) of rule 8 shall be passed except after an enquiry held, as far as may be, in the manner hereinafter provided.'

Sub-rule (2) is important. It reads :

'The disciplinary authority or any authority specially empowered by it in this behalf (hereinafter in this rule referred to as 'specially empowered authority') shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges, together with a statement of the allegations on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the disciplinary authority or any authority specially empowered by it in this behalf, a written statement of his defence and also to state whether he desires to be heard in person.'

'Disciplinary authority' is defined in S. 2(c) as follows :

''disciplinary authority,' in relation to the imposition of a penalty on a Government servant, means the authority competent under these rules to impose on him that penalty.'

But the explanation to rule 11(2) provides :

'In this sub-rule and in sub-rule (3), the expression 'the disciplinary authority' shall include the authority competent under these rules to impose upon the Government servant any of the penalties specified in Cls. (i) to (iv) of rule 8.'

Sub-rule (10)(i) of that rule provides that if the disciplinary authority, having regard to its findings on the charges, is of the opinion that any of the penalties specified in Cls. (v) to (vii) of rule 8 should be imposed, it shall furnish to the Government servant a copy of the report of the inquiring authority and, where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority and give him a notice stating the action proposed to be taken in regard to him and calling upon him to submit within a specified time such representation as he may wish to make against the proposed action. After considering the representation of the Government servant concerned, and the advice of the Public Service Commission, if any, the disciplinary authority shall determine what penalty. If any, shall be imposed on him and pass appropriate order on the case. There is no dispute that the appointment of Sadasivayya, J., and the enquiry held by him were strictly in accordance with the Classification, Control and Appeal Rules. What is urged on behalf of the petitioner is not that there was any contravention of the Classification, Control and Appeal Rules, but that the Classification, Control and Appeal Rules to the extent they empower the Governor to initiate disciplinary proceedings against a member of the Judicial Service are ultra vires of Art. 235 of the Constitution. We have now to see whether this contention is correct.

9. Article 235 of the Constitution, which is found in Chap. VI of the Constitution - the chapter dealing with the subordinate Courts - reads as follows :

'The 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 shall be vested in the High Court; 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 authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.'

On an analysis of this provision it is seen that this article prescribes that :

(1) the control over District Courts and Court subordinate there to shall be vested in the High Court :

(2) that control includes 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;

(3) the said control does not take away from the person concerned any right of appeal which he may have under the law regulating the conditions of service; and

(4) the control in question does not authorize the High Court to deal with him otherwise than in accordance with the conditions of service prescribed under such law, i.e., the law regulating the conditions of service.

It is now reasonably well-settled and the same was not disputed before us that the 'control' contemplated by Art. 235 includes disciplinary control over the officers presiding over the subordinate Courts. The learned Advocate-General did not join issue on that question. But that disciplinary control, as seen from Art. 235, is subject to two limitations, viz.,

(1) it does not take away from the person concerned any right of appeal, which he may have under law regulating the conditions of service, and

(2) it does not authorize the High Court to deal with him other wise than in accordance with the conditions of service prescribed under such law.

It was not denied before us that a person belonging to the Judicial Service of the State is holding a post in connection with the affairs of the State. Therefore, in the absence of any legislation by the State Legislature, as is the case in this State, his conditions of service are those prescribed by the Governor in exercise of the power conferred on him by Art. 309 of the Constitution. But the power of the Governor to prescribe the conditions of service of the Government servants, as seen from Art. 309, is subject to the provisions of the Constitution. Article 235 is one such provision. Conditions of service of Government servants are laid down in the Classification, Control and Appeal Rules. Rules 8 and 11 are two such rules. Unless those rules are held to be ultra vires of Art. 235, in exercising its disciplinary jurisdiction over the subordinate judicial officers the High Court is bound to act in accordance with those rules. It is true that the Governor is not competent to impair the 'control' vested in the High Court over the subordinate judiciary by having recourse to his rule-making power under Art. 309. But rules 8 and 11, quoted earlier, do not, in our opinion, corrode into the High Court's disciplinary jurisdiction. That would be clear if we examine the relevant constitutional provisions.

10. Under our Constitution, unlike under the American Constitution, there is no complete separation of the Judicial power from the legislative and executive powers, though the functions of the three organs of the State, viz., judicial, legislative and executive, are reasonably well-defined. Judicial independence is secured under our Constitution not by rigidly separating the judicial organ of the State from the other two organs but by specific provisions in the Constitution. Our Constitution is devised on the basis of checks and balances. For a harmonious working of the Constitution, each organ of the State must act within its own sphere and show respect for the powers of others. No organ should try to encroach the field reserved for the others. Harmony and understanding between the three organs of the State are of utmost importance in a Constitution like ours. No organ of the State is superior to any other. What is supreme is the Constitution. Therefore, in attempting to locate any power, Courts should not start with constitutional theories prevalent in other countries. Their sole guide should be the Constitution. Their duty is to interpret the Constitution without preconceived opinions. So far as the subordinate judiciary is concerned, the Constitution has vested in the Government considerable powers. Article 233(1) of the Constitution 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 the High Court exercising Jurisdiction in relation to such State. Sub-article (2) of that article prescribes that a person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judges if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment. Now, coming to the appointment of persons other than District Judges to the Judicial Service of the State, Art. 234 provides that those appointments 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. From these two articles it is seen that appointments to the subordinate judiciary are made by the Governor though the High Court is associated with the Governor in that matter, in some form or other.

11. As seen earlier, the petitioner was first taken into the Judicial Service as a Munsif. His appointment was made by the Governor. The Constitution divides the Subordinate Judicial Service into two categories, viz.,

(1) District Judges, and

(2) officers other than District Judges.

The intermediate cadre of civil Judges is not referred to in the Constitution. No separate appointment to that cadre is contemplated by the Constitution. That cadre has been brought into existence by the rules framed under Art. 309 of the Constitution. To that cadre no appointments as such are made. That cadre, in this State, is filled up by promotion from the Munsifs. Power to promote Judicial officers to such a cadre is conferred on the High Court by Art. 235 of the Constitution. The High Court is not given any power to appoint any judicial officer. It has only power to promote a judicial officer to any post inferior to the post of District Judge. From this it follows that the Governor is the appointing authority of all subordinate judicial officers, which expression includes District Judges and persons holding posts inferior to that of District Judges.

12. The Governor, as seen earlier, is empowered to prescribe the conditions of service of subordinate judicial officers. Article 310(1) of the Constitution provides that except as expressly provided by the Constitution every person who is a member of a civil service of a State or holds any civil post under a State, holds office during the pleasure of the Governor of the State. In view of this provision, except to the extent otherwise provided by the Constitution, every person who holds a civil post in a State holds his office during the pleasure of the Governor. The Governor may reduce him in rank, remove him from service or even dismiss him in view of this provision. But this power of Governor is subject to other express provisions in the Constitution bearing on that point. Article 311 provides :

(1) that no person who is a member of a civil service of a State or holds a civil post under a State shall be dismissed or removed by an authority subordinate to that by which he was appointed;

(2) that no such person shall be dismissed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges against him; and

(3) where it is proposed, after such inquiry, to impose on him any such penalty, he must be given a reasonable opportunity of making representation on the penalty proposed.

But his representation must be on the basis of the evidence adduced during such enquiry.

13. As seen earlier, the petitioner was appointed by the Governor. Therefore, in his case, the Governor is the appointing authority. In view of Arts. 310 and 311, it is the Governor who is empowered either to dismiss him or remove him from service or to reduce him in rank. But the Governor cannot do so except after an enquiry in which the petitioner has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. In other words, the Governor cannot exercise his power to remove or dismiss from service or reduce the rank of the petitioner without holding the enquiry contemplated by Art. 311(2). It is now well-settled that the Governor can delegate his power to hold an enquiry under Art. 311(2) to someone else. If the Governor has power to dismiss, remove or reduce the tank of a subordinate judicial officer and if he has to exercise that power in the manner prescribed by Art. 311(2), then it follows that for the proper exercise of that power he must have power to initiate disciplinary proceedings against the subordinate judicial officers. A power to do a thing includes within itself all incidental powers necessary for the effective exercise of that power. It is a fundamental principle of law that everything necessary to the exercise of a power is included in the grant of the power - see the decision of the Supreme Court in Edward Mills Company, Ltd., Beawar, and others v. State of Ajmer and another [1954 - II L.L.J. 686]. If the Governor cannot initiate disciplinary proceedings against a judicial officer, as contended on behalf of the petitioner, then the power conferred on him under Art. 310 of the Constitution will be greatly impaired. If disciplinary proceedings have to be initiated only by the High Court, the High Court can effectively paralyse the power of the Governor to dismiss, remove or reduce in rank a judicial officer. A construction which leads to the impairment of a constitutional power should not be lightly accepted.

14. On an examination of the provisions of the Constitution it is seen that in the case of subordinate judicial officers, the disciplinary control is divided between the Governor and the High Court. The Governor's power is confined to three things, viz., removing them from service, dismissing them and reducing them in rank. In other respects their disciplinary control is left in the hands of the High Court. But both the Governor as well as the High Court have to exercise the power conferred on them in accordance with the provisions of the Constitution and the rules validly framed under Art. 309. The field reserved for the High Court is clearly demarcated from that reserved for the Governor. Each authority can effectively exercise its power within the field reserved for it. There is no room for collision. It must be remembered that in a Constitution like ours, many things are expected to be done by conventions. Conventions do supplement provisions of the Constitution. Bearing in mind the objective underlying the direction to separate the judiciary from the executive, the utmost importance of the independence of judiciary in a democratic set-up like ours and the requirements of a good judicial administration, we have no doubt in our minds that Governor will not exercise his disciplinary control over the subordinate judicial officers excepting in close co-operation with the High Court. In the very nature of things, the High Court is specially qualified to advise him in those matters and it is difficult to believe that any Governor (which means Government) would deny himself the valuable advice of the High Court. But that is not the same thing as saying that the Government has no power under the Constitution to initiate disciplinary proceedings against subordinate judicial officers.

15. Even assuming that the contention of the petitioner that the only authority which could have initiated disciplinary proceedings against him was the High Court is correct, from the facts set out above. It is clear that in the instant case, disciplinary proceedings against the petitioner had been initiated at the instance of the High Court. The enquiry against him is held by an Hon'ble Judge of this Court. At all stages, up till now, the Governor has accepted the recommendations of the High Court. Therefore, in substance, though not in form the disciplinary proceedings against the petitioner had been initiated by the High Court itself. The present case clearly falls within the rule laid down by the Orissa High Court in Braja Kishore Das v. State of Orissa [1965 - I L.L.J. 265].

16. In support of his contention that Governor is incompetent to initiate disciplinary proceedings against subordinate judicial officers, the learned counsel for the petitioner read to us certain decisions. We shall now proceed to examine those decisions.

17. Reliance was placed on the decision of the Andhra High Court in Mohammad Ghouse v. State of Andhra : AIR1955AP65 for the proposition that the High Court alone has competence to initiate disciplinary proceedings against a subordinate judicial officer. In that case the question that arose for decision was, whether the High Court had competence to place the petitioner therein, a Subordinate Judge, under suspension. Incidentally the question whether the High Court had competence to proceed with the disciplinary proceedings in view of the provision in the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules arose for consideration. In that connection the Court was called upon to consider the scope of Arts. 227, 233, 234, 235 and 309 of the Constitution. After examining those articles, Subba Rao, C.J., as he then was, speaking for the Court observed as follows :

'The substance of the above articles may be stated thus : The High Court has the power of control and superintendence over all Courts within the State. The Governor has the power to appoint, post and promote District Judges in consultation with the High Court had in the case of direct recruitment on its recommendation. He has similar power of appointment in the case of persons other than District Judges in consultation with the High Court and the State Public Service Commission. The posting and promotion of Judges other than District Judges is vested in the High Court.

In the exercise of its power of control, the High Court shall exercise its power in accordance with the conditions of service prescribed under law. The Legislature may make rules regulating the recruitment and conditions of service of persons appointed to any public office. Till then, the Governor is empowered to make rules regulating the recruitment and conditions of service of persons appointed.

A combined reading of the provisions would, therefore, indicate that the general control and superintendence of Courts conferred on a High Court is restricted in specified directions.

It was, therefore, contended, relying on Art. 235 of the Constitution, that the said power of control of the High Court over subordinate Courts is subject to the condition of service prescribed by the Governor or the Legislature as the case may be.

The question, therefore, is what is the meaning to be given to the words 'conditions of service' in Art. 235. Should they be given a wide connotation which would exhaust the content of the power of control, or should it he given a limited meaning so as to reconcile it with the power of control

The Judicial Committee in North-west Frontier Province v. Suraj Narain expressed the view that the words 'conditions of service' would take in circumstances under which an employer is entitled to terminate the services of an employee. A rule providing that a Government servant can only be removed after a disciplinary enquiry by a tribunal may in a general sense be also a condition of service. So too, a rule that a judicial officer shall be under the supervision or control of a person other that a High Court. It will be equally a condition of service if a rule is framed that a judicial officer other than a District Judge is not liable to be posted, transferred or promoted except by the Government. Indeed every condition regulating the appointment, salary, pension, promotion, removal, discipline and amenities of a servant would be a condition of service.

If such a wide construction is accepted, the article itself would become nugatory and, therefore, it should be given a limited meaning. It is, therefore, necessary to give a limited meaning, which would reconcile both parts of the article. The clue is found in the word 'deal' in Art. 235. That word is more appropriate to the procedure prescribed than to the power conferred or exercised. The power is exercised in the manner prescribed by the conditions of service. The procedure cannot obviously affect the power of control but it can only regulate the manner of its exercise. So construed, a reasonable reconciliation can be effected between the two parts of the article.

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.

If the argument of the petitioner is accepted, it will mean that the High Court has control over a Subordinate Judge, but if he misbehaves, it is the tribunal that makes an enquiry and it is the Government that removes him. This construction would in effect take away the subordinate officer from the control of the High Court. On the other hand, the High Court shall follow the procedure prescribed under Art. 309, as a condition of service, it will reconcile both parts of the article. The conditions of service may prescribe that no person can be removed or otherwise punished without due enquiry or in disregard of the principles of natural justice. If there is such a condition, the High Court in exercise of control under Art. 235 should deal with the subordinate concerned in accordance with the condition.

We would therefore, hold that 'conditions of service' in Art. 235 can only mean the condition regulating the exercise of the power of control. A condition of service, therefore, providing in effect and substance that the High Court shall not have power to take disciplinary action either in exercise of its power of superintendence under Art. 227 or under the power of control under Art. 235 is constitutionally invalid.'

The ratio of this decision is that in view of Art. 235, the High Court has power to take disciplinary proceedings against a subordinate judicial officer. We are in respectful agreement with the view expressed in that decision. Further, so far as this State is concerned, that position is placed beyond controversy in view of the explanation to rule 11(2) of the Classification, Control and Appeal Rules, to which a reference has already been made. But the decision in question is not an authority for the proposition that the Governor is incompetent to initiate disciplinary proceedings against sub-ordinate judicial officers. Mohammad Ghouse case : AIR1955AP65 (vide supra) dealt with a converse case. Therein the contention of the petitioner was that the High Court had no jurisdiction to initiate disciplinary proceedings against him. That contention was negatived. Hence that decision is no authority for the contention advanced on behalf of the petitioner.

18. The decision in Mohammad Ghouse case : AIR1955AP65 (vide supra) was taken up in appeal to the Supreme Court in Mohammad Ghouse State of Andhra : [1957]1SCR414 . The Supreme Court confirmed the decision of the High Court on the ground that the relevant rules authorized the High Court to suspend the officer. In view of that finding the Supreme Court did not go into the true scope of Arts. 227, 233 to 235 and 309 to 311 of the Constitution. Hence that decision does not throw any light on the point in controversy in this case.

19. That very case came up again before the Andhra Pradesh High Court in Mohammad Ghouse v. State of Andhra Pradesh : AIR1959AP497 . After the dismissal of the appeal by the Supreme Court, Mohammad Ghouse was dismissed by the Government on the recommendation of the High Court. The High Court made that recommendation on the basis of the report of the enquiry officer. As seen earlier, the enquiry had been ordered by the High Court and the enquiry officer had been appointed by it. Mohammad Ghouse challenged his dismissal before the Andhra Pradesh High Court by means of an application under Art. 226 of the Constitution. Therein he contended again that the High Court was incompetent to initiate disciplinary proceedings against him and that the Governor was the only authority who could have initiated disciplinary proceedings against him. Repelling that contention, the High Court held, following the decision of the Andhra High Court in the case referred to earlier, that it was within the competence of the High Court to initiate disciplinary proceedings against a subordinate judicial officer. This decision merely confirms the earlier decision of the Andhra High Court Hence, the petitioner cannot draw any support from this decision in support of his contention that the Governor had no competence to initiate disciplinary proceedings against him.

20. There is no doubt that the decision of the Calcutta High Court in Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal and other [1961 - II L.L.J. 312] fully supports the contention of the petitioner. In that case the Court laid down that the control over the District Courts and the Courts subordinate thereto is vested with the High Court under Art. 235 of the Constitution and therefore, the only authority competent to take disciplinary proceedings against subordinate judicial officers is the High Court. The petitioner therein was an Additional District Judge. He had been dismissed by the Governor on the recommendation made by the Divisional Commissioner who held a departmental enquiry as ordered by the Chief Secretary. The High Court of Calcutta had not been consulted either before ordering the enquiry or during the enquiry. The enquiry was held at the initiative of the Government. That was certainly an extreme case, probably not having any parallel. The High Court quashed the proceedings holding that the Government had no competence to initiate disciplinary proceedings against a judicial officer. That case is now pending in appeal before the Supreme Court. For the reasons already stated, we are unable to subscribe to the view taken in that decision, viz., the High Court, and High Court alone is the sole authority which can initiate disciplinary proceedings against a subordinate judicial officer. We are of the opinion that both the High Court as well as the Governor have competence to initiate disciplinary proceeding against a subordinate judicial officer.

21. For the reasons mentioned above, we dismiss this petition. But we make no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //