1. This is an application under Article 226 of the Constitution by a former member of the Orissa State Judicial Service, challenging the validity of the order of the Government of Orissa, in the law Department, in their letter No. 7110-C dated 1st November 1962, directing the compulsory retirement of the petitioner from service.
2. The petitioner was duly absorbed as a Munsif in the Orissa Judicial Service and was, in due course, promoted to officiate as Subordinate Judge in 1955. He was transferred to Sambalpur in June, 1957. While he was working there, various allegations of corruption, failure to discharge his duties properly, and other acts of misconduct, came to the notice of his superior authorities : and there was also a resolution passed by the Sambalpur Bar Association against his work. Preliminary enquiries were made into these allegations, and then, after his transfer to Koraput he was placed under suspension on the 9th November 1959 by the District Judge of Koraput under the directions of the High Court and a list of charges framed against him, was also given to him (Annexure A). The petitioner gave his replies to the charges and further informed Government in the law Department that he desired to exercise his option given by Rule 5(1) of the Disciplinary Proceedings (Administrative Tribunal) Rules 1951 (hereinafter referred to as the Tribunal Rules), of having the Departmental enquiry against him conducted by the member of the Administrative Tribunal. This option was duty recognised and the case against him was sent to the Tribunal for holding a departmental enquiry under the said Rules.
The Tribunal recast the original charges, added some new charges and gave him a copy of those amended and new charges. Then it held an enquiry in which the evidence of witnesses was recorded in his presence, and he was also given an opportunity to cross-examine them and to adduce evidence on his behalf. But his prayer for being represented by a counsel was rejected. The case against the petitioner was conducted by a Police Officer of the rank of Deputy Superintendent of Police. After completing the departmental enquiry, the learned Tribunal submitted its report on the 1st June 1960, exonerating the petitioner in respect of some of the major charges, but holding him guilty of the charge of failure to discharge his duties as a Judicial Officer properly. The main acts of delinquency of which the petitioner was found guilty, were these :
(i) He purchased a second hand car on the 20th July 1958, from the eighth defendant in Money Suit No. 12 of 1956 pending in his court without obtaining, the previous permission of the Revenue Divisional Commissioner and thereby contravened Rule 9 of the Government Servants Conduct Rules.
(ii) He failed to discharge his duties properly as Subordinate Judge in passing orders for the issue of a writ of attachment before judgment on 26th March, 1958, in Money Suit No. 7 of 1958.
(iii) He failed to discharge his duties properly By:
(a) unnecessarily interfering in the course of cross examination by a lawyer in several suits, especially in Money Suit No. 12 of 1956.
(b) not acting carefully by demanding more Court fee in Title Suit No. 3 of 1958 and
(c) by creating an impression in the minds of the litigants in Money Suit No. 12 of 1956, Execution Case No. 53 of 1957, and Title Suit No. 3 of 1958 that he was leaning in favour of the party on whose behalf two Advocates of Sambalpur Bar appeared, viz. Sri Gouri Sankar Misra and Sri Manabhanjan Pradhan. These two Advocates are said to be his friends.
3. On the basis of the report of the Administrative Tribunal, Government tentatively decided, with the concurrence of the High Court, that the petitioner should be compulsorily retired from service and he was given a further opportunity to show cause why the proposed punishment may not be passed against him. A copy of the report of the Tribunal was also sent to him. He showed cause on the 31st July, 1962, but this was not accepted by the Government and after consulting the High Court the Government passed orders on the 1st November, 1962 compulsorily retiring the petitioner from service.
4. The main contention of Mr. Ghosh appearing in support of this writ application may be summed up as follows :
(a) Under Article 235 of the Constitution the control over district courts and subordinate courts vests in the High Court and that Court alone has the authority to direct the holding of a departmental enquiry against a member of the judicial Service and to impose any punishment on him. Here, as the enquiry was held under the orders of Government and as the final order of punishment was also passed by the State Government, that order must be held to be unconstitutional, as contravening Article 235.
(b) The Tribunal had no jurisdiction to amend or add, the charges which were originally framed against the petitioner by the High Court and the petitioner was seriously prejudiced by such amendment of and addition to the charges.
(c) The proceedings before the Tribunal were not conducted in accordance with the rules of natural justice.
(d) The finding of the Tribunal that the petitioner was guilty of failure to discharge his duties properly, was based on no evidence.
5. The true scope of Article 235 of the Constitution first came up for consideration before the Andhra High Court in Mohomed Chouse v. State of Andhra (S) A I R 1955 Andh 65. There the learned Judges held that the control and superintendence conferred on the High Court by Article 235 (read with Article 227) of the Constitution, necessarily implied that the High Court alone was the authority competent to initiate proceedings for disciplinary action against members of the Judicial Service. It has the power to suspend an officer pending enquiry and to complete all other processes required before the final decision is taken to impose punishment. The aforesaid judgment was taken up on appeal before the Supreme Court in Mohommad Chouse v. State o Andhra, (S) AIR 1957 S C 246 where though many of the views held in the judgment of the Andhra High Court were not expressly endorsed, nevertheless their Lordships of the Supreme Court held that the High Court had the power to suspend a member of the judicial Service (a Subordinate Judge in that case) and also to complete the entire departmental proceeding under its directions, even though the final order of punishment may be passed by Government after complying with the provisions of Article 311.
These two judgments were fully noticed in a recent judgment of the Calcutta High Court reported in Nripendra Nath Bagchi v. Chief Secretary Government of West Bengal, AIR 1961 Cal 1 (SB) where the view taken by the Andhra High Court was completely endorsed, But even in that judgment, the learned Judges held that the final order of dismissal or removal or reduction in rank can be passed only by Government (see paragraphs 28 and 76). In another judgment of the Andhra High Court reported in Mahomed Chouse v. State of Andhra Pradesh, AIR 1959 Andh Pra 497 the earlier view of the High Court of the year 1955 was reiterated.
6. No decision to the contrary has been cited before us. I should point out however that the aforesaid judgment of the Calcutta High Court is now pending on appeal before the Supreme Court (registered by Calcutta High Court as S C A 31 of 1981). It is understood that in connection with the hearing of this appeal the Supreme Court has issued notices to all the High Courts to intervene (vide Civil Appeal No. 391 of 1964) as the case raises an important question affecting the extent of control of the High Court over the subordinate Judiciary. Thus, the correctness of the views taken by the Andhra High Court and the Calcutta High Court in the aforesaid cases regarding, the true scope of Section 235 of the Constitution especially as regards the initiation of disciplinary proceedings against members of the judicial service, is now pending before their Lordships of the Supreme Court and, it is inadvisable for us to discuss this point any further.
But for the disposal of this application it may beassumed--until overruled--that the view taken by theAndhra High Court and the Calcutta High Court inthe cases cited above, is correct (as contended byMr. Ghosh) viz., that it is the High Court and not theState Government which has the initial jurisdictionto institute disciplinary proceedings against membersof the judicial service, place them under suspension,get the departmental enquiry held against them andalso formulate tentative views regarding the punishment to be imposed. But these decisions do not gofurther and support the extreme contention put forward by Mr. Ghosh that even the actual order ofpunishment can be passed only by the High Courtand that Government have no jurisdiction whatsoever. I have earlier referred to the particular paragraphs in the judgment of the Calcutta High Courtwhere their Lordships have themsevles recognisedthat the ultimate authority to pass the order ofpunishment, is the State Government because theyare the appointing authority though their orderwould be passed on the recommendations of theHigh Court.
7. The Orissa Judicial Service consists of two classes, Class I and Class II. The Munsifs belong to Class II and they are undoubtedly appointed by Government in accordance with the rules made by Government for their recruitment under Article 234 of the Constitution. The Subordinate Judges are recruited by promotion from the Tanks of Munsifs, and this promotion is made exclusively by the High Court in exercise of the powers conferred on them by Article 235. The question therefore arises as to whether, when a Munsif is promoted as Subordinate Judge, there is in effect a fresh appointment as a Subordinate Judge so as to make the High Court the 'appointing, authority'. If this view is taken, then even final orders, of punishment on a Subordinate Judge could be passed by the High Court (without of course contravening the provisions of Article 311). But if such 'promotion' is not considered a fresh appointment for-the purpose of Article 311, then the original appointing authority for the Munsifs, namely Government would alone have the exclusive right to pass final orders of punishment mentioned in Article 311.
Mr. Ghose raised an ingenious contention to the effect that the High Court in exercise of its powers, under Article 235 is not an authority subordinate to Government, and that consequently even if the High Court passes the final orders of punishment upon a member of the Judicial service, even though the appointing authority was the Government, nevertheless there will be no contravention of Article 311. In my opinion, it is not necessary to decide this question here. The Andhra High Court Judgment on which Mr. Ghose relied, was a case of Subordinate Judge. There, though, during all the earlier stages, in the disciplinary proceedings, steps were taken by the High Court, the actual order of dismissal was passed by Government: see AIR 1959 Andh Pra 497 and Government's jurisdiction to pass such final orders of punishments was never challenged. In (S) AIR 1957 S C 246, though there is no actual decision of this question, there are some observations in paragraph 8 which seem to indicate that the final authority to pass orders of punishment under Article 311 even in the case of Subordinate Judges is the Government. Presumably, this point also may be decided by the Supreme Court in the appeal from the Calcutta High Court now pending before it, in which all the High Courts are being noticed to intervene. But in the absence of clear authority, I am unable to accept the extreme contention of Mr. Ghose that the final authority to pass the order of dismissal or removal from service of a member of the Judicial Service is the High Court and not the Government.
8. The next question for consideration is whether Government's action in directing the Departmental enquiry to be held by the Administrative Tribunal and in tentatively deciding upon the punishment to be imposed on the petitioner after giving him notice, would be unconstitutional as contravening the provisions of Article 235. It the provisions of the Tribunal rules are examined with special reference to rule 55 of the Civil Services (Classification, Control and Appeal) Rules 1930, it will be found that, in substance, there was no difference so far as the observance of the principles of natural justice was concerned. Hence, though Mr. Ghose may be right in his contention that the Tribunal Rules by their own force may not apply to officers of the Judicial Service, because they are officers under the administrative control of the High Court, by virtue of Article 235, nevertheless, as they are also entitled to the protection of Article 311, there could be no legal bar if the High Court applies the provisions of the Tribunal Rules to the delinquent officer while deciding to hold the departmental enquiry. All that Mr. Ghose could fairly contend is that the State Government cannot either by ignoring the High Court altogether or by going against the opinion of the High Court direct the holding of an enquiry against an officer of the judicial service for disciplinary action.
Here, however, the facts are otherwise. The officer himself, by his letter dated 23-12-1959 addressed to the Law Department (annexure 1 to the additional affidavit of the State dated 3rd December 1964) wanted his case to be referred to the Tribunal, for the purpose of holding a departmental enquiry, and District Judge in his letter to the High Court dated 2nd January 1960 (annexure 1 (a)) solicited the view of the High Court; and the High Court in their letter dated 14th November 1960 (annexure 1 (b)) recommended that the prayer of the petitioner may be allowed and the enquiry against him may be conducted by the Administrative Tribunal according to law. In substance, it makes very little difference whether the actual order directing the holding of an enquiry is made by Government or the High Court, so long Government accept the recommendation of the High Court, especially when that recommendation is cased on the desire expressed by the Officer himself in writing. I am, therefore, unable to appreciate Mr. Ghose's contention that the reference of the petitioner's case to the Tribunal is itself void, as contravening Article 235 of the Constitution.
9. Similarly, though the order suspending the petitioner from service pending enquiry was made by the High Court as admitted in paragraph 11 of the writ petition, the High Court and Government acted with one mind at every stage of the departmental proceeding against the petitioner. In the affidavit filed on behalf of the State of Orissa, by the Under Secretary Political and Services Department dated 15th January, 1964, it was asserted in paragraph 11 of that case the tentative decision of Government to retire the petitioner compulsorily from service was made with the concurrence of the High Court.
Again, after complying with the requirements of Article 311 and issuing the 2nd notice, Government sought the views of the High Court, before passing of the final orders. The Court recommended that he should be compulsorily retired from service but at the same time recommended that he should be confirmed as Subordinate Judge (by way of an ancillary order, to the main order imposing the punishment of compulsory retirement). It does not appear that the Government accepted the latter suggestion but they accepted the main suggestion and directed the compulsory retirement of the petitioner from service, I nave already shown that even in respect of officers of the Judicial Service the authority to pass final orders as regards major punishments is the State Government and not the High Court and hence the mere fact that the State Government did not accept the ancillary recommedation of the High Court, of first confirming the petitioner as Subordinate Judge before retiring him compulsorily, will not affect the validity of their main order of punishment which again is based on the recommendation of the High Court.
10. The next question for consideration is whether the Tribunal had jurisdiction to amend or add to the charges as framed against the petitioner by the High Court. In the original charge various instances of his failure to discharge his duties properly as Subordinate Judge were not fully set out, though one of the charges referred to his buying a car without obtaining the previous permission of the Commissioner of the Division--which is a contravention of the Government Servants Conduct Rules. But other acts such as the issue of writ attachment before judgment in Money Suit No. 7 of 1958 an unnecessary interference with counsel's cross examination of witnesses in the cases mentioned already, were not mentioned in the original charge. The whole case against the petitioner was referred to the Tribunal at his own suggestion. Moreover, Rule 5 of the said Rules (as it stood at the relevant period) required Government while forwarding that case to the Tribunal, to state not only the matters referred to it under rule 4, but also all other material facts having a bearing on the case, and Sub-rule (2) of that rule gives power to the Tribunal to peruse all the records bearing on the case. Rule 7 (1) and (2) may be quoted :
'7 (1) The Tribunal shall in such case make such enquiry as may be deemed to be appropriate.
(2) In conducting such enquiry the Tribunal shall be guided by the natural rules of equity and justice and shall not be bound by formal rules relating to procedure and evidence.
11. It will be noticed that the rules confer very wide jurisdiction on the Tribunal as regards the procedure to be followed during the enquiry, subject of course to the overriding consideration that rules of equity should be strictly observed. Alteration or addition or amending of a charge is merely a matter of procedure and so long as ample notice of such alteration or addition or amendment is given and adequate opportunities for defence are afforded to the delinquent officer, there will be no violation of the rules of equity even if the charge is altered or added or amended by the Tribunal. Even in regular criminal proceedings involving the liberty of the subject the Criminal Procedure Code authorises the Court holding the enquiry to amend or alter the charge at any stage, subject of course to certain safeguards--See Section 227, Cr. P. C. In my opinion, therefore, the Tribunal acted within its jurisdiction in amending and altering the charges before commencing departmental enquiry.
12. I may at this stage, refer to a minor point raised by Mr. Ghose. In the Tribunals Rules of 1951 (i. e. as they acted prior to the amendment made in 1955) the tribunal was required to co-opt an assessor to assist it : see Sub-rule (4) of Rule 3 which was to the following effect:
'Subject to the directions of the Governor, a Tribunal shall co-opt an assessor to assist it'.
In 1955 however Sub-rule (4) was slightly amended as follows :
'Subject to the directions of the Governor the Tribunal may co-opt an assessor to assist it'.
The difference in language between these two sub-rules has been noticed in a Division Bench decision of this Court in Ramchandra Choudhry v. State of Orissa, ILR (1959) Gut 573 : (AIR 1960 Orissa 58)--where it was held that by virtue of this amendment the Tribunal had discretion to co-opt an assessor or not--subject only to any direction that may be given by the Governor. Here, no direction to the contrary was given by the Governor and hence there was no invalidity in the Tribunal conducting the proceeding without the aid of an assessor.
13. According to Mr. Ghosh the rules of natural justice were violated in the following manner (i) denial of legal assistance : (ii) omission to supply the petitioner with copies of various documents which he asked for; (iii) omission to give him an adjournment for the purpose of cross-examination of witnesses.
14. So far as the denial of legal help is concerned, this Court in a Division Bench case reported in Nityaranjan v. The State, ILR (1951) Cut 373 : (AIR 1962 Orissa 78) pointed out that though in a departmental proceeding a delinquent public servant is not entitled to be represented by a lawyer, nevertheless, there may be special circumstances connected with the case such as complexity of facts, volumes of evidence, educational attainments and experience of the public servant concerned, etc., which may indicate that without legal assistance he may not be able to adequately cross-examine the witnesses or establish Ms innocence. These observations cannot apply in the present case.
The delinquent public servant here holds a law degree, and he has been a member of the Judicial Service for more than 10 years, accustomed to try cases and examine witnesses, etc. On the side of the State the enquiry was conducted by a Police Officer of the rank of Deputy Superintendent of Police. The facts of this case are not unduly complex especially for a judicial officer because the charges dealt with specific instances of bribery, irregularity in the holding of trials in Civil Suits, purchasing a car without the previous permission of the Revenue Divisional Commissioner, in contravention of the Government Servants Conduct Rules, etc. The learned Tribunal has itself pointed out in paras. 32 and 33 of its judgment that as between the Deputy Superintendent of Police who conducted the proceedings and the petitioner, the latter was distinctly more capable and that his written explanation showed that 'he is not less capable than any ordinary lawyer conducting a case of this nature.' His subsequent explanation to Government on receipt of the second notice (Annexure E) will also show the officer was fully competent to defend himself. In the circumstances of this case, therefore, I am not prepared to hold that the denial of legal help would amount to contravention of the rules of natural justice.
15. As regards the evidence that all the papers asked for by the petitioner were not handed over to him, I have to point out that the petitioner has not asserted that he was not given an opportunity to see those papers and take copies of the same. Some of them dealt with public records, especially judicial records. It would nave been very difficult to supply copies of the same, and all that the petitioner could legitimately claim is the right to inspect those records rind to take private copies of the same during such inspection. In para. 3 of the counter-affidavit of Mr. Patro for the State of Orissa it was averted that the Tribunal allowed the petitioner to go to Sambalpur to inspect the records and also go to Sundergarh to inspect the records at the Collectorate; and this statement has not been controverted by any counter-affidavit. This grievance must therefore be rejected as imaginary.
16 As regards denial of adjournment for the purpose of cross-examination, the Tribunal has pointed out in paragraph 31 of his judgment as follows :
'It is to be pointed out that during the course of the enquiry Sri Das did not express his intention to postpone the cross-examination of any particular witness on the ground that he needed some interval to prepare himself to conduct the cross-examination. Had he intimated this to me, he would have been given sufficient time even for the purpose of cross-examination as is ordinarily being done by this Tribunal in other cases whenever necessary. He has not applied to recall any of the prosecution witnesses for further cross-examination except in the case of his own Bench Clerk (P. W. 29) which was allowed.'
In paragraph 33 he further observed :
'Sri Das, therefore, never expressed his difficulty or embarrassment in cross-examining them. Most of the evidence is based on the record which Sri Das had ample opportunity to examine.'
No sooner the examination of a witness is over, a copy of his deposition was handed over to him. In such circumstances he had not at all been denied a reasonable opportunity of defending himself in the course of this enquiry even though he had no lawyer to represent him during the course of enquiry.'
These statements of facts, given by the Tribunal as to what happened before it, have not been challenged by any counter-affidavit and must therefore be taken to be correct. In my opinion, therefore, no rule of natural justice was contravened by not giving the petitioner a reasonable opportunity to cross-examine the witness.
17. The last contention of Mr. Ghose was that the findings of the Tribunal about the petitioner not discharging his duties properly were based practically on no evidence but this contention also is equally untenable. It was admitted by the petitioner that when he purchased the car from Mr. R.N. Patel he had not obtained the previous permission of the Divisional Commissioner. This R.N. Patel was none else but a defendant in money suit No. 12 of 1956 pending in the Court of the petitioner. It is true that subsequently, he obtained the permission of the competent authority. It was open to the Tribunal to hold that as Rule 9 of the Government Servants Conduct Rules requires the previous permission of the competent authority for such purchase, there, was contravention of that rule. Whether serious notice should be taken of this contravention in view of the subsequent permission obtained by the petitioner, is a different matter which this Court, in exercise of its writ jurisdiction, cannot obviously look into.
18. Similarly, the finding of the Court that the order of the petitioner in issuing a writ of attachment before judgment in money suit No. 7 of 1958 on the 26th March 1958, was not justified is also based on ample evidence as found by the Tribunal.
19. The same observations will apply with regard to his alleged interference with the lawyer's cross examination in the cases referred to in the charge. It is true that the Sambalpur Bar Association also passed a resolution against him by an overwhelming majority asking for his immediate transfer from Sambalpur. But the Tribunal's finding is not based on the resolution of the Sambalpur Bar Association, but on the actual evidence adduced before it in the presence of the petitioner himself. Hence, it is incorrect to say that the Tribunal's findings are based on no evidence.
20. I must lastly refer to an anomalous position which was very much emphasised by Mr. Ghose on behalf of the petitioner. According to him, the High Court in its administrative side is the sole authority in all disciplinary matters, affecting the members of the Judicial Service, by virtue of Article 235 of the Constitution. Hence all the papers relating to the drawing up of the proceeding against the petitioner, upto the stage of final orders, were handled by the Judges of this High Court while dealing with the matter administratively. When, however that Officer of the Judicial Service is punished and he wants a judicial review of that order of punishment by an application under Article 226 of the Constitution, the same High Court is also required to decide the case judicially (though to a limited extent). There is no provision for transfer of proceedings under Article 226 or 227 from one High Court to another. The result is that the same authority which administratively recommended the imposition of a punishment on a judicial officer under its control, is also required judicially to decide about the legality of the punishment when the matter comes up before it under Article 226. Under the existing provisions of the Constitution this anomaly cannot be avoided, especially in a small High Court like Orissa.
It is true that in the present case all relevant orders were passed by the State Government but those orders were based on the recommendations made by the High Court and there is no doubt that the Judges of this Court had dealt with this case at the earlier stages. Hence, at the commencement o the hearing of this writ application, I pointed out to Mr. Ghose that as there is no provision for transfer of cases of this type, if he had any objection to this High Court hearing this writ petition, he may consider the advisability of withdrawing it and filing a civil suit. But Mr. Ghose was not prepared to accept this suggestion, nor could he put forward any alternative suggestion as to how the application could be otherwise disposed of. He also did not object to our disposing of: this writ petition and contended himself with merely pointing out the anomaly.
Perhaps in a big High Court with several Judges all administrative matters relating to Judicial Officers (including those involving disciplinary proceedings against such officers) may be dealt with for the sake of convenience, by a small Committee of Judges, so that when the final order of punishment is subsequently challenged before that High Court in the shape of a writ petition, that petition may be pleaded before other Judges who had nothing to do administratively with the proceedings earlier. But this is not possible in a small High Court where, under the rules, all matters involving the passing of major punishments on officers of the Judicial Service are required to be placed before the Full Court o all the Judges. We had therefore no other alternative but to hear this writ application and dispose of it on merits.
21. In this connection I may refer to some observations of the Supreme Court in paragraph 26 of AIR 1954 S C 186 (at p. 190), Sukhdeo Singh v. Hon'ble C.J.S. Teja Singh and the Hon'ble Judges of the Pepsu High Court at Patiala. There it was observed that where contempt proceedings were drawn up against a party for attacking a Judge personally it is desirable that the proceedings should be heard by other Judges, but at the same time their Lordships added the following note of caution :
'We do not lay down any general rule because there may be cases where that is impossible as for instance in a Court where there is only one Judge or two and both are attacked. Other cases may also arise where it is more convenient and proper for he Judge to deal with the matter himself,'
Here in the original proceedings drawn up againstthe petitioner he was called upon to show cause whyhe may not be dismissed from service. Under Clause(vi) of Rule 16 of the Orissa High Court Rules(Volume I) such matters are required to be placedbefore a Full Court of all the Judges. Hence, it isimpossible to constitute a Bench consisting of Judgeswho have not dealt with the case administratively inthe earlier stages.
22. The application is dismissed with costs. Hearing fee is assessed at Rs. 200/- (Rupees Two Hundred only.):
23. I agree.