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Anandilal Verma Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtRajasthan High Court
Decided On
Judge
Reported in(1967)IILLJ343Raj
AppellantAnandilal Verma
RespondentState of Rajasthan
Cases ReferredState of West Bengal v. Nripendra Nath Bagchi
Excerpt:
- - , after holding a full enquiry, prepared his report on 21 september 1963 holding the petitioner guilty of charge 1 and recommended punishment of dismissal or removal of the petitioner from service. that the governor alone, after considering the written statement of the defence to be submitted by the petitioner in connexion with the charges levelled against him, could either, if not satisfied, hold the enquiry himself or appoint an enquiry officer for the purpose. the best reconciliation of these different articles of the constitution will he 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. their lordships of the supreme court in that judgment have.....1. this is an application by the petitioner anandllal verma under article 226 of the constitution praying for an appropriate writ, direction or order:(i) to quash the show-cause notice dated 4 december 1963 issued by the law secretary requiring him to show cause why he should not be removed or dismissed from the rajasthan judicial service, and(ii) to quash the order of suspension of the petitioner dated 6 july 1963 issued by the registrar of this court placing the petitioner under suspension as also the enquiry proceedings and the report held and made by c. b. bhargava, j.2. the petitioner has also prayed for a declaration that be is entitled to be reinstated. a prayer has also been made for a direction or writ by way of prohibition or otherwise to prohibit the rajasthan state from.....
Judgment:

1. This is an application by the petitioner Anandllal Verma under Article 226 of the Constitution praying for an appropriate writ, direction or order:

(i) to quash the show-cause notice dated 4 December 1963 issued by the Law Secretary requiring him to show cause why he should not be removed or dismissed from the Rajasthan Judicial Service, and

(ii) to quash the order of suspension of the petitioner dated 6 July 1963 issued by the Registrar of this Court placing the petitioner under suspension as also the enquiry proceedings and the report held and made by C. B. Bhargava, J.

2. The petitioner has also prayed for a declaration that be is entitled to be reinstated. A prayer has also been made for a direction or writ by way of prohibition or otherwise to prohibit the Rajasthan State from proceeding further against the petitioner.

3. The petitioner was appointed to the office of Munsif in the Rajasthan Judicial Service on 1 July 1959 on two years' probation by the Governor of Rajasthan. He was confirmed In the year 1961. He took over charge of the office of Munslf-Magistrate, Nawa, Nagpur district, on 20 April 1962.

4. In January 1963, a written complaint signed by one Pyarelal was received In this Court in which serious allegations were made against the petitioner. It was suggested that he had got his relations and neighbours, with whom he had previous enmity, Involved in a criminal case and had Illegally ordered their arrest and their detention in jail. This complaint was forwarded to Sri Rajvi Amar Singh, District and Sessions Judge, Merta, for enquiry and report. Another complaint in Hindi signed by Dhoolchand, Srinarain and Kalyan making similar allegations against the petitioner was submitted to the District and Ssaions Judge, Merta. The District and Sessions Judge, Merta, had a preliminary enquiry and also obtained the comments of the petitioner on the complaints received against him and found a prima facie case established against the petitioner.

5. On receipt of the report of the District and Sessions Judge, Merta, the Chief Justice on 6 July 1963 passed an order placing the petitioner under suspension, with immediate effect. The Chief Justice also appointed Justice Sri C. B. Bhargava as enquiry officer under Rule 16 (4) to hold an enquiry against the petitioner under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the rules).

6. Bhargava, J., framed two charges against the petitioner which along with the statement of allegations on which the charges were based, were served on Mm on 15 July 1963. Charge 1 was that he abused his magisterial power and by has order dated 26 July 1962 in State v. Narain (Criminal Case No. 41 of 1962), penditg in his Court, got Ganpat illegally arrested and brought before him and further by his order dated 4 August 1962 illegally remanded him to police custody for a period of seven days with the result that Ganpat remained In wrongful confinement from 4 August 1962 to 7 August 1962 for Which he was entirely responsible. It was further added that the above act was done by him against Ganpat as Ganpat had filed a complaint against his father Sri Chhitar Mal regarding an encroachment in a public way in which Gram Panchayat, Harnod, inflicted a fine of Rs. 11 on 21 May 1961, and therefore, he wanted to take revenge from Ganpat. As charge 2 has not been held proved, it need not be referred.

7. The petitioner submitted his explanation denying the charges Bhargava, J., after holding a full enquiry, prepared his report on 21 September 1963 holding the petitioner guilty of charge 1 and recommended punishment of dismissal or removal of the petitioner from service.

8. The report was put up before the Judge In the Administration Department who made the following observations;

The disciplinary authority for the purposes of the punishment proposed on this officer is the State Government vide Rule 5 (1) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, read with notification No. F. (3)(i) Appts. (A) /60/ Group (11)(1), dated 16 September 1960. It is therefore proposed that the case (with all the relevant papers) be forwarded to the Government with a request to take further necessary action.

9. The Chief Justice agreed with the observations made by the Judge In the Administration Department and the report was forwarded to the Government for necessary action.

10. On the basis of this report, the Secretary to the Government, Law and Judicial Department, by his letter dated 4 December 1963, served a notice upon the petitioner stating that on a careful consideration of the report, and in particular of the conclusions reached by the enquiry officer in respect of the charges framed against him the Governor had provisionally decided that he should be dismissed from the Rajasthan Judicial Service and giving him an opportunity to show cause against the action proposed to be taken and assuring the consideration of any representation that might be made in that connexion.

11. The petitioner submitted application to the Law Secretary on 11 December 1963 for inspection of the documents produced and considered by the enquiry officer and also for the copies of the statements of the witnesses. He was, however, directed to contact the Registrar of the High Court. In the meanwhile, on 19 December 1963 he submitted his written statement. The petitioner was allowed inspection of the documents by the Registrar on 4 May 1964. He was further given personal hearing by the Deputy Law Minister on 5 and 6 May 1964 at Jaipur. Before the Governor or the Government could decide the matter the petitioner filed this application on 9 July 1964 praying for the reliefs set forth above.

12. In the writ petition the petitioner initially relied upon the following grounds :

(i) The petitioner in the first instance challenged the Jurisdiction of Bhargava, J., to frame charges and hold enquiry. The petitioner's challenge is twofold :

(a) That the executive powers of the Governor in the matter of exercising disciplinary action could not have been delegated to any Judge of the High Court as such powers could be delegated only to subordinate authorities and the High Court Judges cannot be considered subordinate to the Governor. The vires of Rule 15 (1), Para. 2 of the rules, were challenged.

(b) That the Governor, who is the appointing authority, Is also the disciplinary authority, so far as the infliction of the penalty of dismissal or removal is concerned under Rule 15 (1).

13. Under Rule 16 (2) of the rules, the Governor alone was competent to serve the petitioner with a chargesheet and to call upon him to submit his written statement of the defence. That the Governor alone, after considering the written statement of the defence to be submitted by the petitioner in connexion with the charges levelled against him, could either, if not satisfied, hold the enquiry himself or appoint an enquiry officer for the purpose. On this basis the petitioner contends that the order of enquiry made by the Chief Justice and the enquiry held on that basis by Bhargava, J., as enquiry officer is void and absolutely without jurisdiction and entirely Ineffective in law to constitute any legal basis for issue of show-cause notice under Article 311(2) of the Constitution.

(ii) The petitioner also challenged the validity of the show-cause notice on the additional ground that the issuing authority has not, nor could, apply its mind to the merits of the case after going through all the documents and evidence that was considered by the enquiry officer in the course of enquiry and which afforded basis for the report of the enquiry officer, inasmuch as the issuing authority had not the entire record before it.

(iii) The petitioner challenged the order of suspension on the ground that the Chief Justice, being not the disciplinary authority, was not competent to suspend the petitioner.

(iv) The petitioner also put forward an alternative case that even if the enquiry officer be competent to hold the enquiry, the enquiry stands vitiated on a number of grounds which have been detailed in Para, 10 (iv) of the writ application. The petitioner further contends that the enquiry report also stands vitiated by a number of reasons manifest on the face of the record which have been detailed in Paras, 11 (i), 11 (11) and 11 (iv) of the writ petition.

14. We shall first proceed to examine the first and (in our opinion) the main contention relating to the jurisdiction of Bhargava, J., to hold the enquiry. The State's answer to this challenge IB twofold:

(1) It is contended in the first Instance that under Article 235 of the Constitution, the control over the subordinate Judiciary vests in the High Court and the High Court is authorized to deal with him la accordance with the conditions of service prescribed under the law. The Administrative Judge or any other Judge In connexion with the exercise of the disciplinary action acts as a limb of the High Court and there can be no question of the Government delegating any of Its functions to any Judge of this Court in the matter of disciplinary jurisdiction. The Court or any Judge acting for the Court acts in the exercise of constitutional powers vested In the Court by the Constitution while exercising disciplinary Jurisdiction.

(ii) That on the language of the notification No. F. (3)(1) Appts. (A/60/Cr. III), dated 16 September 1960 and 9 January 1961, issued by the Governor delegating to the Administrative Judge or the Judge nominated by the Chief Justice the powers to impose on members of the Rajasthan Judicial Service any of the penalties prescribed in the said rule except these of removal or dismissal from service, the Administrative Judge or the Judge nominated by the Chief Justice has power to impose all the penalties, both minor and major, mentioned in Rule 14 except these of removal or dismissal from service and either of them could be disciplinary authority for minor or major penalties. Although Rule 17 of the rules provides procedure in connexion with some minor penalties one uniform procedure has been prescribed for all major penalties under Rule 16. Consequently, that the Administrative Judge or the Judge nominated by the Chief Justice would be competent to proceed under Rule 16 for making enquiry would not be Invalid simply because at its conclusion it Is found that the officer proceeded against merits dismissal or removal. The Governor has reserved his powers only for the purposes of punishment under these rules.

15. The question which then emerges for determination la as to which is the competent authority to exercise disciplinary jurisdiction over the members of the subordinate Judiciary of the State and what are the principles governing the procedure and mode of exercising such jurisdiction. This raises the question of the proper interpretation of Article 235 of the Constitution which vests control In the High Court over the subordinate judiciary. The questions have been considered In a number of cases, namely, Mohammad Ghouse v. State of Andhra A.I.R. 1955 A.P. 66; Mohammad Ghouse v. State of Andhra : [1957]1SCR414 ; Mohammad Ghouse v. State of Andhra Pradesh : AIR1959AP497 ; Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal 1961-II L.L.J. 312; Mohammad Ilyas Ali v. State of Maharashtra 1965-II L.L.J. 487; and flually, by the Supreme Court in State of West Bengal v. Nripendra Nath Bagchi (Civil Appeal No. 391 of 1964) decided on 10 September 1965, Witheut discussing these cases in detail, we may observe that there ia complete unanimity of judicial opinion on the following points:

(i) That on a proper interpretation of Article 235 In the constitutional context the expression 'control' used In Article 235 Included disciplinary control and that the disciplinary jurisdiction over the members of the Judicial Service In the subordinate Courts vests exclusively in the High Court. Incidentally, it may be said that this ensures the Independence of the judiciary by emancipating the subordinate judiciary from the executive control.

(ii) The disciplinary jurisdiction is subject to the limitation that the High Court cannot pass an order of dismissal or removal from service on the members of the subordinate judiciary. The High Court also cannot use the special jurisdiction conferred by the provisos (6) and (c) to 01. 2 (2) of Article 311. In this connexion It may be stated that the Governor Is the appointing authority for the members of the subordinate judiciary and he is also the dismissing authority. Of course, appointments to the Subordinate Judicial Service have to be made by the Governor In consultation with the High Court in some cases and on recommendation of the High Court in some other cases. Naturally, dismissal or removal from service of the members of the Subordinate Judicial Service can be made only in consultation with the High Court,

(iii) That the exercise of the jurisdiction can be initiated only by the High Court and that the High Court can finalise disciplinary proceedings and take appropriate action In all cases where punishment is not dismissal or removal from service.

16. The next question that falls to be considered la that if a member of the subordinate judiciary is to be punished by dismissal or removal from service, what should be the procedure and mode for the Issue of necessary orders by the Governor. The question was posed by the Bombay High Court is Mohammad liyas Ali v. State of Maharashtra 1965-II L.L.J. 487 (vide supra) as follows:

Whether In case 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 after the High Court on consideration of the report of the 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?

On this question, there is divergence of judicial opinion. The Special Bench of the Calcutta High Court In Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal 1961-11 L.L.J. 312 (vide supra) has taken the view that the Governor need be associated only at the final stage. We may in this connexion refer to the observations of Mukharji, J., in p. 323 of the judgment;

It is no doubt true that under Article 311 read with Articles 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 Article 235 of the Constitution the Governor or the Government will 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 He 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 recommendation 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 Article 235 and secondly by vesting appointment, tenure and dismissal with the Government under Article 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 in the exercise of Its powers and thereby ensuring the much-needed security of public services In India.

17. The learned Judge further observed at a later stage;

Disciplinary enquiry may not necessarily involve or ultimately result In either dismissal or removal or even reduction In rank. It may involve other penalties such as censure and denial of promotion which do not attract the limitations under Article 311 of the Constitution or it may find that the public servant is not guilty at all in which event there will be no penalty.. Before a disciplinary authority actually makes the enquiry and comes to a finding, it is not possible to anticipate whether it will result in dismissal or removal or reduction in rank, so as to attract the operation of Article 311. Therefore, the provisions of Article 311 of the Constitution cannot be read aa divesting the control which Article 235 vests in the High Court, but only aa regulating and prescribing the conditions under which such control has to operate in the three cases of

(1) dismissal,

(2) removal, and

(3) reduction in rank.

The Bombay High Court, however, in Mohammad Ilyas Alvi v. State of Maharashtra 1965-II L.L.J. 487 (vide supra) has differed from the view of the Calcutta High Court in Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal 1961-II L.L.J. 312 (vide supra). The Bombay High Court referred to the following observations of the Supreme Court in Bachhlttar Singh v. State of Punjab : AIR1963SC395 :

There Is just one continuous proceading 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 second is reached only if it is found that they are so established. That stage deals with the action to be taken against the Government servant concerned.

The learned Judges then stated as follows :

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 Article 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 thesecond stage.

It was further added:

In our opinion, therefore, where on preliminary invastigation 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 coarse mat should be adopted would be to refer the matter to the Governor recomtaanding Appointment of an enquiry officer which la the first stage of giving a reasonable opportunity to a public servant.

The question came up before the Supreme Court in Nripendra Nath Bagchi v. State of West Bengal (Civil Appeal No. 391 of 1964 decided on 10 September 1965), on appeal by the State of West Bengal from the decision of the Special Bench of the Calcutta High Court. The Supreme Court upholding the decision of the Calcutta High Court in Nripendra Nath Bagchi case W61-II L.L.J. 312 (vide supra) and dismissing the State's appeal, stated the position as follows :

That the Governor appoints District Judges and the Governor alone can dismiss or remove them goes without saying. That does not Impinge upon the control of the High Court only means that the High Court cannot appoint or dismiss or remove District Jurigea the same way the High Court cannot use the special jurisdiction conferred by the two provisos. The High Court cannot decide that it is not reasonably practicable to give a District Judge an opportuanlty of showing cause or that in the interest of the security of the State is not expedient to give such an opportunity. This the Governor alone can decide. That certain powers are to be exercised by the Governor and not by the High Court does not necessarily take away other powers from the High Courts, Tie provisos can be given their full effect without giving rise to other implications. It is obvious that if a case arose for the exercise of the special powers under the two provisos, the High Court must leave the matter to the Governor . . . But this 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.

Their lordships also observed:

The control, which is vested in the High Court, is a complete control subject only to the power of the Governor in the matter of appointment (Including dismissal and removal) and posting and promotion of District Judges . . . The High Court can hold enquiries, impose punishments other than dismissal or removal, subject however to the conditions of service, and a right of appeal if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by 01. 2 (2) of Article 311 unless such opportunity is dispensed with by the Governor acting under the provisos (&) and (c) to that clause. The High Court alone could have held the enquiry in this case. To hold otherwise will be to reverse the policy, which has moved determinedly in this direction.

18. The learned Counsel for the petitioner made an argument that as the Supreme Court Judgment (Civil Appeal No. 391 of 1964) does not specifically deal with the procedure to be adopted when a penalty of dismissal or removal from service has to be imposed on the delinquent member of the Subordinate Judicial Service, the view expressed by the Bombay High Court In Mohammed Ilyas v. State of Maharashtra 1965-II L.L.J. 487 (vide supra) should be preferred to the view taken by the Calcutta High Court in Nripendra Nath v. Chief Secretary, Government of West Bengal 1961-II L.L.J. 312 (vide supra).

19. We are unable to accept this argument. In our opinion, the observations of the Supreme Court make the position quite clear. Their lordships of the Supreme Court in that Judgment have clearly emphasized that the control vested in the High Court Is complete and is not in any way impugned by the vesting of certain powers in the Governor and that the provisos (b) and (c) of Clause 2 (2) of Article 311 of the Constitution can be given full effect without giving rise to other implications and that the High Court alone could have held an enquiry and that to bold otherwise will be to reverse the policy which is moved determinedly in this direction. This clearly and unmistakably is a preference for the adoption of the Calcutta view. It is also significant that the Supreme Court was hearing an appeal from the decision of the Calcutta High Court where a view contrary to the Bombay High Court was expressed and their lordships appear to have approved the view expressed by ths Calcutta High Court in Nripendra Nath v. Chief Secretary, Government of West Bengal 1961-II L.L.J. 312 (vide supra).

20. From what has been discussed above, it is quite clear to us that the High Courts have got complete disciplinary Jurisdiction over the members of the Subordinate Judicial Service and the High Courts can initiate disciplinary enquiry even where the probable consequence may be dismissal or removal from service and that the Governor or the Government need be associated only when the High Court after enquiry arrived at a tentative conclusion that the delinquent judicial officer deserves the penalty of dismissal or removal from service. In this view of the law, the first and the main contention taken in the writ application cannot have any force and has to be dismissed. This being so, we need not examine the alternative stand taken in the respondent's reply in this connexion.

21. Faced with this position, the learned Counsel for the petitioner amended his writ application by adding an additional ground under which it was contended that the control envisaged by Article 235 of the Constitution vests In the High Court as a whole and not In any single Judge including the Chief Justice. Sri Bhargava relied upon Article 216 of the Constitution which reads as follows:

Every High Court shall consist of a Chief 'Justice and such other Judges as the President may from time to time deem it necessary to appoint.

Reliance was also placed upon the observations of a Bench decision of this Court in Premnath v. State of Rajasthan 1965 R.L.W. 14 to the effect:

We agree that In the matter of appointment, posting and promotion of District Judges, consultation with the High Court under Article 235 means consultation with the Full Court and not with a Committee consisting of Chief Justice and a few Judges.

Prima facie, there is considerable force in the contention of Sri Bhargava that the High Court ordinarily means the Chief Justice and all other Judges except when under a valid rule or authorization one or more Judges of the Court may be competent to act for the whole Court. The Advocate-General brought to our notice Sub-section (3) of Section 44 of the Rajasthan High Court Ordinance, 1949, reading as follows :

44. (3) The administrative control of the High Court shall vest in the Chief Justice who may exercise it in such manner and after such consultation with the other Judges as he may think fit or may delegate such of his functions as he deems fit to any other Judge of the High Court.

He suggested that the expression 'administrative control' of the High Court in this sub-section includes the disciplinary control over the members of the subordinate judiciary which vests exclusively in the Chief Justice and consequently, irrespective of the powers conferred on the Administrative Judge or a Judge nominated by the Chief Justice, Sri Bhargava, J., could exercise the disciplinary control as delegated by the Chief Justice.

22. We consider it proper to point out at this stage that the disciplinary control over the subordinate Judiciary was vested In the High Court by Article 235 of the Constitution for the first time and the corresponding provisions of the various preceding Government of India Acts had no such provisions. Considering this and the absence of any other materials bearing on the question of the exercise of disciplinary jurisdiction over the subordinate Courts we entertain some doubt in concluding on the basic of the use of the expression 'administrative control' of the High Court that the disciplinary control vests exclusively in the Chief Justice to the exclusion of the other Judges of the Court. However, assuming that the contention of the learned Advocate General to be correct, still we must observe that that position cannot hold good after the Indian Constitution came into force which vested the administrative control over the subordinate judiciary in the entire High Court. In this conclusion, we are confirmed by the scheme of the rules in Chap. Ill of the rules which relates to executive and administrative business of the Court.

23. Rule 14 (1) of the Rajasthan High Court Rules, 1952, provides for the formation of the Administrative Committee, Sub-rule (2) thereof provides that subject to the rules, the Administrative Committee shall act in its administrative and executive business. Rule 15 provides for appointment of an Administrative Judge. Under Rule 16, the Registrar is required to submit all executive and administrative business before the Administrative Judge. The Administrative Judge under Rule 17 may consult and obtain the opinion of the other members of the Administrative Committee. Rule 18 enumerates the matters in which the Administrative Committee shall be consulted. Rule 21 enumerates the matter on which all the Judges of the Court shall be consulted. Clause (d) thereof mentions withholding of promotion, supersession of reduction of judicial officers. The scheme of the rules in general and in Clause (d) of Rule 21 are consistent only with the administrative control vesting in the entire Court on and the entire Court should exercise It except on proof that under a valid rule or authorization any single Judge or a number of Judges can act for the whole Court.

24. This raises the question as to how the disciplinary jurisdiction of determining the punishment of die missal or removal from service can be exercised by the Court. There is no specific provision In this behalf in the rules. Rule 21, however, requires consultation of all the Judges on matters like withholding of promotion, supersession or reduction of judicial officers. It will thus be seen that the rules do not contemplate that a single Judge of the Court should determine that the punishment of removal or dismissal from service should be recommended to the Governor against a delinquent member of the Judicial Service.

25. The Advocate-General suggested that the omission of the words 'dismissal or removal' from service in Rule 21 (d) Indicates that for awarding the penalty of dismissal or removal from service consultation of all the Judges is not necessary. He suggested that as the Governor in the appointing and dismissing authority and as he is expected to apply his mind to the question of awarding the punishment of dismissal or removal from service, consideration of the award of such penalty by all the Judges does not appear to be necessary and a determination by a single Judge or a number of Judges should be quite sufficient.

26. We find no force in this suggestion. We may point out that the administrative control of the High Court is complete and that the Governor is to exercise the powers specifically reserved for him and that the Governor shall have due regard to the opinion of the Court in exercising his powers.

27. There is no clear provision in the rules delegating powers of the Court to any single Judge to determine that the punishment of removal or dismissal should be recommended to the Governor. In these circumstances, we are unable to agree that the mere absence of the words 'dismissal or removal from service' in Clause (d) of Rule 21 should justify the conclusion that a single Judge nominated by the Chief Justice can finally determine whether the punishment of dismissal or removal from service should be recommended to the Governor.

28. It follows that on the enquiry report of Bhargava, J., all the Judges of the Court should have been consulted for arriving at the conclusion that the penalty of dismissal or removal from service was to be recommended to the Government against the delinquent officer.

29. To this extent, we agree with the counsel for the petitioner. Sri Bhargava has also suggested that Bhargava, J., having not been appointed by the Full Court, the enquiry and the enquiry report are not valid. On this contention as also on the other contention, namely, that the enquiry and the report of Bhargava, J,, stand vitiated on grounds mentioned in the writ application and that the Chief Justice could not have passed order of suspension, we do not consider it proper to express any opinion as the enquiry papers will be put up before the Pull Court before further action Is taken against the petitioner.

30. The petitioner has also challenged the validity of the show-cause notice on the ground that Issuing authority did not and could not consider the entire materials brought on record during the course of enquiry which were the basis of the report. It IB unnecessary to examine this question Inasmuch as the show-cause notice has to be quashed on the ground that the Governor or the Government could take action for dismissing or removing the petitioner only after the Full Court considers the matter and arrives at a conclusion about awarding the penalty of dismissal or removal from service. On the enquiry report of Bhargava, J., as it is, no final action can be taken.

31. At this stage, we may take notice of the question relating to the validity of the Rajasthan Civil Services (Classification. Control and Appeal) Rules. During the course of arguments, the vires of Rule 15 of the rules came up for consideration on the ground that the Rule 13 ultra vires and void being Inconsistent with Article 235 of the Constitution Inasmuch as it authorizes any authority other than the High Court to take disciplinary action. Dealing with similar rule, the Special Banch of the Calcutta High Court stated the position as follows in Nripendra Nath Bagchi v. Chief Secretary, Government of West Bengal 1961-II L.L.J. 312 (vide supra):

The first point to emphasize regarding this rule is that It -does not say who shall conduct enquiry and which authority shall be in charge of such departmental proceedings. Having regard to my conclusion on the relevant articles of the Constitution with particular reference to Article 235 of the Constitution, if Rule 55 implies any authority other than the High Court to conduct or direct departmental enquiry against a member of the Judicial Service in the State, then this rule is ultra vires the Constitution In So far as it does so. The proper way, however, to read this rule on the point, Is to read it consistently with the Constitution and not to give it an un-constitutional implication and thereby make it bad.

Under Rule 2 (c) '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. Rule 16 lays down that on receipt of the written statement of defence or if no such statement la received within the time specified, the disciplinary authority may itself inquire into such of the charges as are not admitted or, if it considers it necessary so to do, appoint a board of inquiry or an inquiry officer for the purpose. Under the rule as it stands, it is open to the Government to appoint anyone other than the High Court to hold a disciplinary enquiry against a judicial officer. It has however been held by their lordships of the Supreme Court in State of West Bengal v. Nripendra Nath Bagchi (Civil Appeal No. 391 of 1964 decided on 10 September 1965) that only the High Court can hold a disciplinary enquiry against a judicial officer. In BO far as the rules authorize any authority other than the High Court to hold a disciplinary enquiry against a judicial officer, they are void to that extent under Article 235 of the Constitution. But, as held by the Calcutta High Court, the rules must be read consistent with the Constitution so as not to make them bad.

32. No attempt was made before us to read the rules as inconsistent with the provisions of the Constitution. In these circumstances, we need not declare the rules to be ultra vires.

33. We, therefore, partially accept the writ application and quash the show-cause notice dated 4 December 1963, issued by the Secretary of the Law and Judicial Department and direct that all the Judges of the Court should be consulted on the question of awarding the penalty of dismissal or removal from service against the petitioner. In the circumstances of the case, we leave the parties to bear their own costs.


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