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Gangadhar Shivalingappa Nagmoti Vs. the State of Mysore - Court Judgment

LegalCrystal Citation
SubjectConstitution;Service
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 1313 of 1965
Judge
Reported inAIR1970Kant309; AIR1970Mys309; (1970)2MysLJ59
ActsConstitution of India - Articles 225, 226, 227, 235, 311 and 311(2); Mysore High Court Rules, 1959 - Rule 6; Mysore Civil Services (Classification, Control and Appeal) Rules, 1957 - Rules 8, 9 and 11
AppellantGangadhar Shivalingappa Nagmoti
RespondentThe State of Mysore
Appellant AdvocateS.G. Bhat, Adv.
Respondent AdvocateE.S. Venkataramaiah, Adv.
Excerpt:
.....high court at calcutta quashed the order of dismissal as well as the enquiry. it is true that the governor empowered the very person so recommended as the specially empowered authority to hold the enquiry and that the specially empowered authority was a judge of the high court. 31. as the very foundation for any disciplinary action against the petitioner, namely, an enquiry held by the high court, is absent in the present case, the penalty of compulsory retirement imposed on the petitioner y the impugned order of the governor dated 31-10-1964, is clearly unsustainable. hegde had recommended in his report that the petitioner should be reduced to the rank of civil judge junior division (munsiff) and that he should not be considered for promotion as civil judge, senior division, or..........the specially empowered authority who held the enquiry was a judge of the high court; and(iii) the governor empowered the very person proposed by the high court, as the specially empowered authority.23. it can reasonably be inferred that in empowering mr. justice k. s. hegde as the specially empowered authority, the governor did not act suo motu but acted on the letter addressed by the registrar-in-charge of the high court to the government stating that he (the registrar-in-charge) had been directed to request the government to move the governor to so appoint mr. justice it. s. hegde. it is true that the governor empowered the very person so recommended as the specially empowered authority to hold the enquiry and that the specially empowered authority was a judge of the high court. but.....
Judgment:

Chandrashekhar, J.

1. The petitioner was a member of the Mysore Judicial Service in the rank of Subordinate Judge. In this petition, he has assailed the disciplinary proceedings against him culminating in an order retiring him from service compulsorily.

2. We may now state the material facts which arc not in dispute.

3. In the year 1963 the petitioner was working as the Principal Subordinate Judge in Banglore. On 8-10-1963 one Annapa Setty (examined as P. W. 9 in the disciplinary enquiry) submitted a complaint to the Director, Anti-Corruption, making certain allegations against the petitioner regarding the disposal of a steel almirah which had been attached in an execution case pending before him.

4. The said Director forwarded that complaint to the High Court on 13-10-1963. On 14-10-1963 the Hon'ble Chief Justice requested Mr. Justice Narayana Pai to hold a preliminary enquiry on that complaint and to report. After holding a preliminary enquiry. Mr. Justice Narayana Pai sent a report in which he stated that in his opinion there was a prima facie case for instituting disciplinary proceedings against the petitioner.

5. On the report of the preliminary enquiry, the Hon'ble Chief Justice directed on 19-10-1963 that the Governor might be moved to appoint Mr. Justice K. S. Hegde as the Specially Empowered Authority to hold a Departmental Enquiry against the peti-tionter. In pursuance of that direction the Registrar-in-charge of the High Court addressed on 23-10-1963 a demit official letter to the Secretary to the Government of Mysore in Home Department stating that he (the Registrar-in-charge) was directed to request the Secretary to move the Governor to appoint Mr. Justice K. S. Hegde as the Specially Empowered Authority to hold a Departmental Enquiry into the conduct of the petitioner under Rule 11 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957.

6. Purporting to act in exercise of the powers conferred by that Rule, the Governor of Mysore, by his order dated 8-11-1963. specially empowered Mr. Justice K. S. Hegcle, Judge of the High Court of Mysore, to exercise the powers and perform the functions of the Specially Empowered Authority under the said Rule in respect of the disciplinary proceedings against the petitioner.

7. On 18-12-1963 the Specially Empowered Authority framed a charge against the petitioner. The said charge reads:

'That you while being the Principal Subordinate judge. Bangalore, misused your official position with a view to secure monetary benefit either for yourself or for your father-in-law by utilising the services of the Process Nazir and the Process Staff attached to the First Munsif's Court, Bangalore, to get up false records to show that all the six Godrej Almirahs got attached in Original Suit No. 215 of 1960 on the file of the Subordinate Judge's Court, Bangalore, were sold in the Court auction held, while actually one Godrej Almirah was not sold in auction but was merely shown to have been sold in the relevant sale papers for a low price of Rs. 150/-, but later you got the Almirah removed to the house wherein you and your father-in-law reside.'

8. The petitioner filed a written statement in which he denied having committed any of the acts alleged in the charge. He asked for an oral enquiry and to be heard in person. Accordingly, the Special Empowered Authority held an enquiry in which 9 witnesses were examined in support of the charge. The petitioner examined defence witnesses and he also gave evidence as a defence witness.

9. After such enquiry, the Special Empowered Authority, in his report dated 16-3-1964, held that the charge against the petitioner was established and found him guilty of the charge. Regarding the punishment, the Special Empowered Authority recommended that the petitioner might be reduced to the rank of Civil Judge, Junior Division (Munsiff), and that he should not be considered for promotion as Civil Judge, Senior Division, or as Subordinate Judge for a period of two years.

10. After considering the report of the Specially Empowered Authority, the Governor recorded his finding that the charge was proved. The Governor caused the issue of a notice under Article 311 (2) of the Constitution proposing to retire the petitioner compulsorily from service by way of punishment. The petitioner was asked to show cause why the proposed action should not be taken. After considering the representation of the petitioner in response to the said notice, the Governor, by his order dated 31-10-1964, directed that the petitioner be retired compulsorily from service with immediate effect. The petition for review of the aforesaid order, was dismissed by the Governor on 1-4-1965.

11. Thereafter the petitioner filed the present petition which was dismissed by this Court on 16-7-1965 at the stage of admission without notice to the respondent. Later this Court granted a certificate of fitness to appeal to the Supreme Court.

12. In the appeal. Civil Appeal No. 1735 of 1967, after hearing the petitioner and the respondent (The State of Mysore), the Supreme Court, by its order dated 22-8-1969, set aside the order of this Court dated 16-7-3965, and remanded the case to this Court for being disposed of afresh according to law. The Supreme Court directed this Court to admit this petition, to issue notice to the respondent giving it an opportunity to file any counter-affidavit and thereafter to deal with the case in accordance with the law laid down by the Supreme Court in the State of West Bengal v. Nripendra Nath Bagchi, : (1968)ILLJ270SC .

13. Accordingly, this Court admitted this petition on 3-10-1969 and issued notice to the respondent (the State of Mysore) which has filed a counter-affidavit. This is how the petition has now come up before us.

14. The ground on which the Supreme Court set aside the order of this Court dated 16-7-1965, is that this Court had not considered the aspect that by Article 235 of the Constitution, the High Court is made the sole custodian of the control over the judijudiciary and as pointed out by the Supreme Court in : (1968)ILLJ270SC , the word, 'Control', as used in Article 235, includes disciplinary control or jurisdiction over District Judges and other subordinate Judges. Before the Supreme Court, it was, no doubt, contended on behalf of the respondent that by its letter dated 23-10-1963 the High Court had itself requested the Government to appoint Mr. Justice K. S. Hegde as the Specially Empowered Authority to hold the Departmental enquiry into the conduct of the petitioner and therefore the provisions of Article 235 of the Constitution had been substantially complied with. But the Supreme Court did not examine the validity of the plea of substantial compliance (with the provisions of Article 235 of the Constitution) as it (Supreme Court) felt that it did not have the advantage of the judgment of this Court on that disputed point.

15. Mr. S. G. Bhat, learned Counsel for the petitioner, urged the following grounds before us:

(i) The disciplinary proceedings initiated by the Governor and culminating in the order of compulsory retirement of the petitioner passed by the Governor, are void as being inconsistent with the provisions of Article 235 of the Constitution;

(ii) Rules 8, 9 and 11 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, in so far as they relate to the Judicial Service, are violative of Article 235 of the Constitution;

(iii) The order of compulsory retirement is not one of the punishments which falls within Article 311 of the Constitution;

(iv) The finding of the Specially Empowered Authority that the petitioner was guilty of the charge, is unsustainable as it is not based on any evidence; and

(v) The Governor should have given to the petitioner an opportunity of being heard, before recording a finding that the charge was proved.'

16. Elaborating the first contention, Mr. Bhat argued that it is the High Court and not the Governor that can hold a disciplinary enquiry against a Judicial Officer, that the order of the Governor appointing Mr. Justice K. S. Hegde as the Special Empowered Authority, is void and consequently, the enquiry held by Mr. Justice K. S. Hegde has also no legal validity, and that the punishment based on an invalid enquiry is also void. It was also argued by Mr. Bhat that the Governor had no power to impose on the petitioner the punishment of compulsory retirement, in the absence of a recommendation by the High Court to that effect.

17. In : (1968)ILLJ270SC , the material facts were briefly these: Respondent Bagchi was an Additional District & Sessions Judge, and was acting as District & Sessions Judge. The Government of West Bengal framed certain charges against him and appointed Mr. B. Sarkar, the Commissioner (fete Member. Board of Revenue) to hold an enquiry into those charges. Mr. Sarkar held the enquiry and reported to the Government that some of those charges were proved. A notice was issued to Bagchi to show cause why ha should not be dismissed. After he had shown cause and after consulting the Public Service Commission, he was dismissed from service. But the High Court was not consulted at all, On a petition by Bagchi under Articles 226 and 227 of the Constitution, the High Court at Calcutta quashed the order of dismissal as well as the enquiry.

18. In the appeal preferred by the Government of West Bengal, the Supreme Court upheld the decision of the High Court. Explaining the scope of Article 235 of the Constitution, Hidayatullah, J., (as he then was) who spoke for the Court, said that the word 'control' in Article 235 of the Constitution is not merely the power to arrange the day-today working of the Court but includes control over the conduct and discipline of Judges, and that the High Court is made the sole custodian of the control over judiciary.

His Lordship added:

'Control is useless if it is not accompanied by disciplinary powers. It is not to be expected that the High Court would run to the Government or the Governor in every case of discipline however small and which may not even require the punishment of dismissal or removal.'

19. It was contended before the Supreme Court in Bagchi's case, : (1968)ILLJ270SC that Judicial Officers who are appointed by the Governor, cannot be dismissed or removed by any authority other than the Governor and consequently an inquiry against a Judicial Officer should be made by or under the directions of the Governor or the Government. Repelling that contention, Hidayat-ullah, J., said that the Governor appoints District Judges and the Governor alone can dismiss or remove them, does not infringe upon the control of the High Court and does not lead to the further conclusion that the High Court must not hold the enquiry any more than that the Governor should personally' hold the enquiry. His Lordship added that there is nothing in Article 311 which compels the conclusion that the High Court is ousted of the jurisdiction to hold the enquiry, that in exercise of the control vested in the High Court, the High Court can hold enquiry, impose punishments other than dismissal or removal subject however to the conditions of service and right of appeal if granted by the conditions of service and to giving an opportunity of showing cause as required by clause (2) of Article 311, unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) of that clause. His Lordship concluded that the High Court alone could have held the enquiry in that case.

20. In view of the above pronouncement of the Supreme Court, it is clear that an enquiry held by or under the authority of the Sigh Court, forms, the foundation for any punishment that may be imposed on a judicial Officer. It follows from the above decision that in the present case also it is High Court that could have held the enquiry against the petitioner. The Governor had no power to order such enquiry or to empower any person to hold such enquiry. Even though the Specially Empowered Authority who held the enquiry against the petitioner, was a Judge of the High Court, he was not empowered by the High Court to hold that enquiry and the enquiry held by him cannot be regarded as one by or under the authority of the High Court.

21. However, the attempt of the learned Advocate-General who appeared for the State, was a salvage as much as possible of the disciplinary proceedings against the petitioner. The learned Advocate-General submitted that even if we were to hold that the disciplinary proceedings against the petitioner subsequent to the stage of the report of the Specially Empowered Authority, are void, we should uphold the disciplinary proceedings up to the stage of the said report, so that it may be open to the High Court now to take disciplinary proceedings against the petitioner starting from the stage of that report.

22. The learned Advocate-General argued that the appointment of the Specially Empowered Authority must be regarded as being, In substance, one made by the High Court and that likewise the enquiry made by the Specially Empowered Authority must be regarded as being, in substance, one held under the authority of the High Court, in view of the following circumstances:

(i) The initiative to take disciplinary proceedings against the petitioner, came from the High Court and not from the Governor;

(ii) The Specially Empowered Authority who held the enquiry was a Judge of the High Court; and

(iii) The Governor empowered the very person proposed by the High Court, as the Specially Empowered Authority.

23. It can reasonably be inferred that in empowering Mr. Justice K. S. Hegde as the Specially Empowered Authority, the Governor did not act suo motu but acted on the letter addressed by the Registrar-in-charge of the High Court to the Government stating that he (The Registrar-in-charge) had been directed to request the Government to move the Governor to so appoint Mr. Justice It. S. Hegde. It is true that the Governor empowered the very person so recommended as the Specially Empowered Authority to hold the enquiry and that the Specially Empowered Authority was a Judge of the High Court. But are these circumstances sufficient to hold that Mr. Justice K. S. Hegde was, in substance, appointed by the High Court and the enquiry held by him was, In substance, under the authority of the High Court

24. Mr. Bhat argued that there is nothing to show that the said letter of the Registrar-in-charge of the High Court to the Government was written under the direction of the High Court. The learned Advocate-General placed before us the relevant records of the High Court. It is seen from these records that on the report of Mr. Justice A. Narayana Pai who held the preliminary enquiry, the Hon'ble Chief Justice directed that the Governor might be moved to appoint Mr. Justice K. S. Hegde as Specially Empowered Authority.

25. It was contended by Mr. Bhat that the recommendation of the Hon'ble Chief Justice to appoint Mr. Justice K. S. Hegde as the Specially Empowered Authority, cannot be regarded as a recommendation by the High Court. This contention was sought to be met by the learned Advocate-General by the plea that in making the said recommendation the Hon'ble Chief Justice acted within the scope of the powers assigned to him by the High Court. In support of this plea, the learned Advocate-General relied on the resolution of the Full Court of the High Court at its meeting held on 11-10-1961. A copy of this resolution has been filed with a memo and the original of this resolution contained in the administrative papers of the High Court, was also shown to us.

26. The relevant parts of the proceedings of the meeting of the Full Court held on 11-10-1961, read :

'Proceedings of the Full Court meeting held at 4.30 P. M. on Wednesday the ll th October 1961 in the Judges' Common Room (High Court).

RESOLUTION

The proposed arrangement for administrative work in the High Court was finalised as follows:--

** ** **I. FULL COURT:

1 ** ** **2. Disciplinary action against Judicial Officers.

3. ** ** **II. C. J. & TWO JUDGES:

1. ** ** **2. Preliminary investigations to consider desirability of taking disciplinary action

against Judicial Officers.

3.** ** **** ** ** III. Chief Justice:

1. ** ** **** ** **2. Unspecified subjects or new subjects until they arc allocated to committees or Individual Judges.'

27. It is seen from the above resolution of the Full Court that while preliminary investigation and determination of desirability of taking disciplinary action against Judicial Officers come within the powers of a Committee consisting of the Hon'ble Chief Justice and two other Judges, disciplinary action against Judicial Officers is a matter to be dealt with by the Full Court itself. Appointment of the Specially Empowered Authority or the Enquiry Officer to hold enquiry into charges against a Judicial Officer, comes, in our opinion, within the ambit of 'disciplinary action against Judicial Officers' which is a matter to be dealt with by the Full Court itself and the Hon'ble Chief Justice has not been empowered by the said resolution to make such appointment.

28. However, the learned Advocate-General argued that appointment of the Specially Empowered Authority or the Enquiry Officer in disciplinary proceedings against a Judicial Officer, comes within Item No. 7 of the matters assigned to the Hon'ble Chief Justice by the said resolution of the Full Court. That Item reads: 'Unspecified subjects or new subjects until they arc allocated to Committees or individual Judges'. We find it difficult to accede to this contention. Item No. 7 is a residuary item which covers only those matters which do not come within any of the matters retained by the Full Court or assigned to Committees consisting of the Hon'ble Chief Justice and two other Judges or any of the first six Items (preceding this Item) assigned to the Hon'ble Chief Justice. Appointment of the Specially Empowered Authority or the Enquiry Officer is a part of the disciplinary action against Judicial Officers and squarely falls within Item No. 2 of the matters retained by the Full Court under the said resolution.

29. In exercise of the powers conferred by Article 225 of the Constitution and under Section 19 of the Mysore High Court Act, 1961, and all other powers thereunto enabling, the High Court of Mysore has made rules, called the High Court of Mysore Rules, 1959, with respect to practice and procedure to be followed at the High Court. Rule 6 of Chapter III of these Rules provides that Benches shall be constituted and judicial work of the Court shall be allotted or distributed to them by or in accordance with the directions of the Hon'ble Chief Justice. But the power conferred on the Hon'ble Chief Justice under this Rule is only in regard to Judicial Work and not administrative matters.

30. Thus it is clear that the Hon'ble Chief Justice has not been empowered to appoint on behalf of the High Court the Specially Empowered Authority or the Enquiry Officer. The question of appointment of the Specially Empowered Authority or the Enquiry Officer to hold an enquiry against the petitioner, was not considered by the Full Court of the High Court. It follows that the direction of the Hon'ble Chief Justice on 19-10-1963 that the Governor might be moved to appoint Mr. Justice K. S. Hegde as the Specially Empowered Authority, cannot be regarded as a recommendation or proposal made by the High Court to the Governor in regard to such appointment. When there was no recommendation or proposal of the High Court in this behalf, the appointment of Mr. Justice K. S. Hegde by the Governor cannot be regarded as being, in substance, an appointment made by the High Court, nor can the enquiry made by him he regarded as being, in substance, one made by the High Court.

31. As the very foundation for any disciplinary action against the petitioner, namely, an enquiry held by the High Court, is absent in the present case, the penalty of compulsory retirement imposed on the petitioner y the impugned order of the Governor dated 31-10-1964, is clearly unsustainable.

32. Another infirmity in the disciplinary proceedings against the petitioner, is that the report of the enquiry held by Mr. Justice K. S. Hegde, was not considered by the High Court. As stated earlier, Mr. Justice K. S. Hegde had recommended in his report that the petitioner should be reduced to the rank of Civil Judge Junior Division (Munsiff) and that he should not be considered for promotion as Civil Judge, Senior Division, or Subordinate Judge, for a period of two years. If the High Court agreed with this proposed penalty or considered that the appropriate penalty to be imposed on the petitioner, was one other than his dismissal or removal from service, the High Court itself was competent to impose such penalty on the petitioner and the matter could not have been referred to the Governor. It is only when the High Court considers that the appropriate penalty against a Judicial Officer is dismissal or removal from service that the High Court need recommend to the Governor to impose such penalty.

33. In the view we have taken on the first ground urged by Mr. Bhat, it is unnecessary to consider the other grounds urged by him.

34. For the foregoing reasons, we quash the order of the Governor dated 31-10-1964 retiring the petitioner compulsorily from service and the enquiry held by Mr. Justice K. S. Hegde. However, it will be open to the High Court to take fresh disciplinary proceedings against the petitioner according to law.

35. As the impugned disciplinary proceedings were prior to the elucidation by the Supreme Court in Nripendranath Bagchi's case, : (1968)ILLJ270SC of the respective powers of the High Court and the Governor in disciplinary matters against Judicial Officers, we direct: the parties to bear their own costs in this petition.

36. Petition allowed.


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