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Jagdish Kumar Sinha Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petitions No. 839 and 850 of 1979
Judge
Reported in1980WLN1
AppellantJagdish Kumar Sinha
RespondentThe State of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredCommissioner of Income Tax v. Rao Raja Kalyan Singh
Excerpt:
constitution of india - article 235 and rajasthan civil services (classification, control and appeal) rules, 1958 disciplinary authority disciplinary proceedings against a judicial officer initiated by c.j. during pendency of enquiry he is functus officio and is incompetent to exonerate judicial officer.;the chief justice himself cannot act as a disciplinary authority. as soon as the chief justice inititates disciplinary action against a judicial officer and nominates administrative judge or a judge to conduct disciplinary enquiry, thereafter, he becomes functus officio, in so for as disciplinary matter against a judicial officer is concerned.;the then chief justice could not pass the orders of exoneration, when the disciplinary proceedings were pending against the petitioners, as he was.....s.k. mal lodha, j.1. in these two writ petitions, two judicial officers have separately questioned the validity of the separate orders passed against them, by which, the orders exonerating them of all the charges were recalled.2. the writ petitions were heard together and as common questions are involved, it will be convenient to dispose them of by a common judgment.s.b. civil writ petition no. 839 of 1979jagdish kumar sinha v. the state of rajasthan3. the petitioner worked as munsif and judicial magistrate, banswara during 1977. he was served with memorandum no est b 2 (iii) 3/77/1477 dated march 1, 1977 along with statement of charges and statement of allegations for the departmental enquiry against him, for some undesirable temper, which is un becoming of a judicial officer. in.....
Judgment:

S.K. Mal Lodha, J.

1. In these two writ petitions, two Judicial Officers have separately questioned the validity of the separate orders passed against them, by which, the orders exonerating them of all the charges were recalled.

2. The writ petitions were heard together and as common questions are involved, it will be convenient to dispose them of by a common judgment.

S.B. Civil Writ Petition No. 839 of 1979

Jagdish Kumar Sinha v. The State of Rajasthan

3. The petitioner worked as Munsif and Judicial Magistrate, Banswara during 1977. He was served with Memorandum No Est B 2 (iii) 3/77/1477 dated March 1, 1977 along with statement of charges and statement of allegations for the Departmental Enquiry against him, for some undesirable temper, which is un becoming of a Judicial Officer. In pursuance of the aforesaid memorandum, he filed reply and claimed regular hearing during the Departmental Enquiry. During the pendency of the Departmental Enquiry, he met the then Chief Justice Shri C. Honniah. The then Chief Justice passed an order exonerating him of all the charges. He has submitted photostat copy of the letter dated September 21, 1978 marked as Ex. 3 informing him that he has been exonerated of all the charges Later on, he was served with letter No Est. B 2 (iii) 3/77/3435 dated May 10, 1979 issued by the Registrar, Rajasthan High Court, Jodhpur, by which, he was intimated that the order of exoneration dated September 21, 1978 has been recalled and Mr. K.D. Sharma has been nominated as Disciplinary Authority to complete the enquiry. He has filed the photostat copy of the letter dated May 10, 1979 marked as Ex. 4. The petitioner has preferred this writ petition feeling aggrieved by recalling of the order dated September 21, 1978 exonerating him of all the charges. He has prayed for the issue of a writ of prohibition, restraining the respondents (State of Rajasthan, High Court of Judicature for Rajasthan and Registrar, High Court of Judicature for Rajasthan at Jodhpur) to proceed with the enquiry and to quash the order dated May 10, 1979, by which, the order of exoneration was recalled.

S.B. Civil Writ Petition No. 850 OF 1979

Saligram Chauhan v. The State of Rajasthan

4. The petitioner worked as Additional Munsif & Judicial Magistrate from June 1974 to May, 1975 and as Munsif and Judicial Magistrate from May, 1975 to June, 1977 at Dholpur. In January, 1978, while posted as Munsif and Judicial Magistrate, he was served with Memorandum No. Est. B 2(iii) 1/78/226 dated January 10, 1978 along with statement of charges & statement of allegations for Departmental Enquiry against him. The memorandum and statement of charges were relating to the period of his posting at Dholpur both as Additional Munsif and judicial Magistrate and as Munsif & Judicial Magistrate from June 1974 to June 1977. The charges related to the allegations that his orders/ judgments were motivated with extraneous considerations. In pursuance of the aforesaid memorandum, he filed his reply. Therefore, late Mr. Justice R.L. Gupta was nominated as the Disciplinary Authority. After the death of Mr. Justice R.L. Gupta, the petitioner met the then Chief Justice Shri C. Honniah. The then Chief Justice, after giving a personal hearing to the petitioner, exonerated him of all the charges levelled against him. The order of exoneration was convened to the petitioner vide letter No. 10596 dated August 30, 1978 by the Registrar, Rajasthan High Court, Jodhpur. The photostat copy of the letter has been submitted by him marked as Ex. 3 Later on, he was served with letter No. Est. B 2 (iii) 1/78/3343 dated 7-5-1979, by which, he was intimated that the order of exoneration dated 30.1.1978 has been recalled & Mr. Justice D.P. Gupta has been nominated as the Disciplinary Authority to complete the enquiry. The petitioner has filed this writ petition questioning the validity of the order contained in the letter dated May 7, 1979, recalling the order dated 30 8-1978 exonerating him of all the charges. He has prayed for the issue of a writ of prohibition, restraining the respondents to proceed with the enquiry and to quash the order intimated to him vide letter dated May 7, 1979, by which, the order of exoneration was recalled.

5. On behalf of the respondents, caveat was lodged. Replies to both the writ petitions were filed on July 17, 1979, opposing the writ petitions. Along with the replies, copy of the order of exoneration and copy of the order recalling that order were filed marked as Ex. Rule 1 and Ex. Rule 2 respectively. The following objections, which are material for the disposal of the with petitions, were raised by the respondents:

(1) That there was no exoneration of the petitioners either by a competent authority or after a proper enquiry. In order words, it was stated that the power to conduct enquiry and exonerating or impressing any penalty on the delinquent officer vests in the disciplinary authority and not the Chief Justice and therefore, the order of the then Chief Justice, exonerating the petitioners of all the charges, was without jurisdiction and hence honest.

(2) That the writ petitions challenging the restarting of the disciplinary proceedings are pre-mature, as no punitive action was taken and result of the enquiry cannot be forecasted.

(3) That the writ petitions are not maintainable in law.

Rejoinders to the petitions were submitted. After hearing the learned Counsel for the parties, the writ petitions were admitted on August 30, 1979. When these writ petitions came up for order on the stay application on October 10, 1979, learned Counsel for both the parties stated that arguments may be heard on the main writ petitions while considering the way stay applications and the writ petitions may be disposed of finally.

6. I have heard Mr. A.K. Mathur learned Counsel for the petitioners and Mr. D.S. Shishodia learned Government Advocate on behalf of respondents.

7. Learned Counsel for the petitioners has raised the following contentions before me.

(1) That the orders, by which the orders exonerating the petitioners of all the charges were recalled, were passed in utter violation of the principles of natural justice in as much as before passing them no opportunity of hearing was afforded to the petitioners.

(2) That petitioner were exonerated of all the charges by the then Chief Justice and exoneration implies termination and as such enquiry against them could not be re-initiated.

(3) That the orders in question amount to reviewing the previous orders exonerating the petitioners and as there is nor specific provision for review of the exoneration orders, the orders and question are without jurisdiction.

(4) Alternatively, review could only be made under Rule 32 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and as the conditions laid down therein are not satisfied and as the orders were passed after the expiry of the period for reviewing the me they are illegal.

8. Learned Counsel for the petitioners, in the first instance, submitted that there was violation of the principles of natural justice in as mouth as no opportunity of hearing was given to the petitioners, before passing the impugned orders, and, placed reliance on the decisions of State of Orissa v. Bindpani Dei and Ors. : (1967)IILLJ266SC , A.K. Kroipak v. UOI : [1970]1SCR457 , Smt. Maneka Gandhi v. Union of India : [1978]2SCR621 , Poonam Chand v. District Judge, Jodhpur and Ors. (D.B. Civil Writ Petition No. 369 of 1978, decided on May 10, 1979), Bachansing v. Collector Sri Ganganagar (S.B. Civil Writ Petition No. 591 of 1977, decided on July 12, 1979) and the State of Rajasthan v. Shri Krishna Annakhetra Trust (D.B. Civil Special Appeal No. 81 of 1979, decided on May 8, 1979.

9. On the basis of the aforesaid authorities, it was argued that the impugned orders recalling the orders exonerating the petitioners having been passed without affording an opportunity of hearing to them, are illegal. It is not in dispute that the petitioners were not afforded an opportunity of being heard before passing of the impugned orders.

10. Relying on Suresh Koshy George v. University of Kerala : [1969]1SCR317 , it was observed in A.K. Kraipak's case (2) as under:

What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the frame-work of the law under which the enquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. When ever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.

11. In Maneka Gandhi's case (3), it was observed as follows:

What opportunity may be regarded as reasonable would necessarily depend on the practical necessities of the situation. It may be a sophisticated full fledged hearing or it may be a hearing which is very brief and minimal it may be a hearing prior to the decision or it may even be post decisional remedial hearing. The audialteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myraid kinds of situations which may arise'.

12. Learned Government Advocate submitted that the orders of exoneration passed by the them Chief Justice were without jurisdiction and they being nullity in law did not confer any right on the petitioners and, therefore, the question of violation of the principles of natural justice does not arise. In this connection, reliance was placed on the decision of Puranchand v. State of Rajasthan 1974 RLW 526, where in Kansing, J. has made the following observations:

Apart from this when no legal right came to be created in favour of the petitioner; the principles of natural justice will not be attracted'.

In this connection, he also submitted that the orders of exoneration were passed by the then Chief Justice in violation of the principles of natural justice in as much as the departmental nominees were not heard and, therefore, they can be ignored.

13. In view of the rival contentions raised by the learned Counsel for the parties, the question that, therefore, arises for consideration is: Whether the orders of exoneration passed by the then, Chief Justice were without jurisdiction and therefore, the orders, recalling, them could be passed without affording an opportunity of hearing to the petitioners.

14. Article 235 of the Constitution of India reads as under:

235. Control over subordinate courts:

The control over district courts and courts subordinate there to including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him other wise than in accordance with the conditions of his service prescribed under such law.

15. According to Article 235, control over judicial officers is vested in the High Court and 'High Court' under Article 235 means the Chief Justice and all other Judges of the High Court. It, therefore, follows that the control is vested in the Full Court. The Full Court passed the Resolution dated October 30, 1971 regarding disciplinary proceedings against Judicial Officers. The material portion of the Resolution, relevant for the present purpose, is as under:

The control under Article 235 is vested in the Full Court, but as it is not convenient for the Full Court to act in all matters the following delegation of powers is made by it;-

1. The Chief Justice and the Administrative Judge are empowered to initiate disciplinary action against the Judicial Officers including the District Judges.

2. The Chief Justice is empowered to place a Judge of a subordinate court under suspension under Rule 13(1) and to revoke such an order under Rule 13(5) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958.

3. (i) The Administrative Judge or a Judge nominated by the Chief Justice shall have the power to take disciplinary action and to impose on a Judicial Officer any of the penalties enumerated in Rule 14 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958, except those of removal and dismissal from service.

(ii) The order of the Administrative Judge or a Judge nominated by the Chief Justice recommending removal or dismissal of a subordinate Judicial Officer shall be placed before the Full Court and the Full Court may accept the recommendation or reverse, modify or alter it in any manner it thinks proper.

(iii) If the Full Court is of the opinion that a subordinate Judicial Officer should be removed or dismissed from service it shall send its recommendation to the effect to the State Government for necessary action in accordance with the provisions of Article 311 of the Constitution.

4. With regard to the meetings of the Full Court the provisions contained in the Rajasthan High Court Rules will apply.

5. This supersedes the Resolution of the Full Court dated 6th May, 1967, and the Resolution dated 7th August, 1971, amending it.

16. According to this Resolution, the functions of the Chief Justice in regard to disciplinary proceedings relating to the Judicial Officers are these:

(1) He can initiate disciplinary action against the Judicial Officers including the District Judges.

(2) He is empowered to place a Judge of the subordinate court under suspension under Rule 13(1) and to revoke such an order under Rule 13(5) of the Rajasthan Civil Services (Classifications Control and Appeal) Rules, 1958.

(3) He can nominate the Administrative Judge or a Judge to conduct disciplinary enquiry.

17. Thus, it is clear from the aforesaid Resolution that the Chief Justice himself cannot act as a disciplinary authority. As soon as the Chief Justice initiates disciplinary action against a judicial officer and nominates Administrative Judge or a judge to conduct disciplinary enquiry, thereafter, he becomes functus officio, in so far as disciplinary matters against a Judicial Officer is concerned The position that emerges is that once a disciplinary action is initiated against a Judicial Officer by the Chief Justice, the only power remains with him is to nominate a disciplinary authority and soon after nomination, he ceases to have any seisin control over disciplinary enquiry. It needs to be mentioned here that regular disciplinary enquires were pending against the petitioners and, for conducting the enquires, the Judges were appointed by the Chief Justice. The Disciplinary Authorities were seized of the disciplinary enquires, which were pending against the petitioners. In J.K. Sinha's case, the Disciplinary Authority had proceeded with the enquiry and recorded the plea of the delinquent officer and summoned the witnesses. In Saligram's case, as the Judge nominated to hold the enquiry had died and no other Judge was nominated by the Chief Justice, the disciplinary enquiry did not proceed further. It is, therefore, clear that disciplinary actions against the petitioner were initiated by the Chief Justice & the Judges were nominated by him to conduct the disciplinary enquiries. A perusal of the orders(Ex. R.1 marked in both the writ petitions) of exoneration shows that the then Chief Justice Shri C. Honniah, despite that the disciplinary proceedings were pending & the Disciplinary Authorities were nominated, exonerated the petitioners of all the charges. In view of the aforesaid Resolution of the Full Court dated October 30, 1971, the then Chief Justice could not pass the orders of exoneration, when the disciplinary proceedings were pending against the petitioners as he was functus officio in regard to the disciplinary enquiries pending against them.

18. A Division Bench of this Court in Ugam Raj Bhandari v. State of Rajasthan and Ors. (D.B. Civil Special Appeal No. 21 of 1975, decided on August 31, 1979), while assuming the Resolution of the Full Court dated May 6, 1967 to be valid and operative, observed an under:

In our opinion, the scheme of 1967 Resolution is to confer the power to take disciplinary action against a judicial officer on the Administrative Judge or a Judge nominated by the Chief Justice. In other words, the Administrative Judge has been empowered to take Disciplinary action against the Judicial Officer without reference to the Chief Justice and a power has also been conferred on the Chief Justice to nominate a Judge as a disciplinary authority for the purpose of taking disciplinary action against a judicial officer. Thus the Administrative Judge as well as the Judge nominated by the Chief Justice have been conferred coordinate jurisdiction in the matter of taking disciplinary action against judicial officers and the Administrative Judge cannot be regarded as subordinate to the Chief Justice while acting as a disciplinary authority. In that view of the mater, if the Administrative Judge has initiated disciplinary proceedings against a judicial officer and is in seisin of the matter, it is not competent for the Chief Justice to interfere with the disciplinary proceedings that are being conducted by the Administrative Judge by nominating another Judge as a Disciplinary Authority and assigning the said disciplinary proceedings to him.

19. I have, therefore, no hesitation in saying that the orders of exoneration passed by the then Chief Justice were without jurisdiction, as he was not competent to pass them, after the disciplinary action against the petitioners had been initiated and the Disciplinary Authorities having been nominated.

20. In H.W.R. Wade Administrative Law, Forth Edition, it is stated:

that a statutory authority endowed with statutory powers has, as already mentioned, no common law powers at all: it can legally do only what the statute permits, and what is not permitted is forbidden. This is the strict doctrine of ultra-vires, & it applies in full force to most of the organs of Government

The learned Author has also stated:

that an administrative act or order which is ultra vires or outside jurisdiction is void in Jaw, i.e of no legal effect what ever. This is because in order to be valid, it needs statutory authorisation, and if it is not, within the powers given by the Act, it has no legal leg to stand on.

21. In Macfoy v. United Africa Co. Ltd. 1962 Appeal Cases 152, at page 160, it was held that the word 'void' means that the transaction is absolutely void-a nullity incapable of any legal consequence transaction not only bad but incurably bad so much so that all the world can ignore it and that nothing can be founded on it. This decision was referred to in Heffmonn-La-Roche v. Trade Secy. 1975 Appeal Cases 295,

22. In Kiransingh v. Chaman Paswan : [1955]1SCR117 , it was observed as under:

It is a fundamental principle that in a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution & even in collateral proceeding. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.

23. From the aforesaid decision, it is abundantly clear that the orders of exoneration being without jurisdiction could easily be ignored and have 'no legal let to stand on.'

24. A some what similar question arose in Chaman singh v. Co-operative Societies, Punjab : (1976)IILLJ98SC . In that case, a notice was issued to the employee to show cause why disciplinary action should not be taken against him for certain items of misconduct imputed to him. The then Secretary of the Bank inquired into the allegations. Thereafter, the Secretary issued a notice to the employee to show cause why his next increment should not be stopped by way of punishment A reply was sent by the employee by way of explanation & the Secretary accepting the explanation dropped the proceedings. Subsequently, the Managing Director was of the view that the Secretary had no power to inflict punishment on the employee of the Bank and that therefore, the proceeding culminating in the exoneration of the employee were invalid, issued a fresh memorandum. Thereupon, a writ petition under Articles 226 and 227 was moved by the employee challenging the revival of the proceedings against him as illegal and opposed to natural justice. It was contended that the writ petition was premature, as no action was taken finally against the employee, for, disciplinary proceedings were still pending and his explanation was under consideration. It was further contended that it is only in the event of the employee being punished that any grievance tan arise for him to be agitated in the proper forum. It was observed by their Lordships of the Supreme Court as under:

Other obstacles in the way of granting the appellant relief were also urged before the High Court and before us, but we are not inclined to investigate them for the short reason that the writ petition was in any case premature No punitive action has yet been taken It is difficult to state, apart from speculation, what the oat come of the proceedings will be in case the appellant is punished, it is certainly open to him either to file an appeal as provided in the relevant rules or to take other action that he may be advised to resort to. It is not for us, at the moment, to consider whether a writ petition will lie or whether an industrial dispute should be raised or whether an appeal to the competent authority under the rules is the proper remedy, although these are issues which merit serious consideration.

We are satisfied that, enough unto the day being the evil thereof, we need not dwell on problems which do not arise in the light of the view we take that there is no present grievance of punitive action which can be ventilated in court. After all, even the question of jurisdiction to reopen what is claimed to be a closed enquiry will, and must, be considered by the Managing Director. On this score, we dismiss the appeal but in the circumstances, without costs.

25. As the orders of exonerate on have been realised, the disciplinary proceedings against the petitioners would be resumed and continued by the Judges nominated for conducting the disciplinary enquires against them. Further no punitive action has yet been taken. The petitioners can only said to be aggrieved, if any punitive action is taken against them Thus there cannot be said to be any present grievance of punitive action, to be ventilated in court.

26. There is another aspect of the matter. It has already been held above that the orders of exoneration passed by the then Chief Justice were without jurisdiction, as he was not competent to pass them, after initiation of the disciplinary proceedings and nomination of the disciplinary authorities. Even the effect of setting aside the impugned orders against the petitioners would be to restore the orders which were passed without jurisdiction.

27. In A.M. Allison v. B.L. Sen : (1957)ILLJ472SC , it was observed as under:

The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in the appeals which are directed against the orders of the High Court in applications under Article 226, we could refuse to interfere unless we are satisfied that the justice of the case requires it. But we are not so satisfied. We are of the opinion that having regard to the merits which have been concurrently found in favour of the respondents both by the Deputy Commissioner. Sibassgar, and the High Court we should decline to interfere.

28. In Venkateswara Rao v. Govt. of Andhra Pradesh : [1966]2SCR172 it was observed as under:

In these circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order--it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samiti. The High Court, therefore, in our view rightly refused to exercise its extra-ordinary discretionary power in the circumstances of the case.

29. Relying on the decisions of A.M. Allison's case (supra) and Venkateswara Roa's case : [1966]2SCR172 . a learned Single Judge of this Court in Gani Mohammed v. The State Transport Appellate Tribunal and Ors. 1976 WLN 174 held:

The result of setting aside the appellate order of the Tribunal would lead to the restoration of the order of the RTA which is patently erroneous. I, therefore, think it proper in the circumstances of the present case, to decline to exercise the discretionary jurisdiction of this court under Article 226 of the Constitution in the matter of grant of not-temporary stage carriage permit to the petitioner on the route.

30. From the aforesaid observations, it is clear that the Court, in exercise of its discretionary jurisdiction under Article 226 of the Constitution will not interfere even with the illegal orders if they, would result in restoration of the orders which are illegal or without jurisdiction. In this view of the matter also, the petitioners cannot get any relief, for, granting them any relief would amount to the restoration of the orders of exoneration, which were passed by the then Chief Justice, who had no jurisdiction to pass them. In these circumstances, I am firmly of the opinion that the impugned orders are not bad for the reason that the petitioners were not heard before passing them, particularly when the petitioners have an opportunity to defend themselves in the Disciplinary Enquries.

31. Now I proceed to examine the second contention raised by the learned Counsel for the petitioner, namely, that the enquiry could not be reinitiated after exoneration. In this connection strong reliance was placed on the decision of Dwarkachand v. State of Rajasthan . In that case it was held that once a departmental enquiry is over and a public servant has been exonerated, no second departmental enquiry on the same facts can be ordered unless there is a specific provision for reviewing an order of exoneration in the Service Rules or any law. In that case, the Collector held a departmental enquiry and came to the conclusion that no case had been made out against the applicant. He, therefore, reinstated the applicant and refused to sanction prosecution. This was in accordance with the Circular of 1953. Thereafter, the matter was taken up by the Anti-corruption Officer and the Collector was asked to reopen the matter and to hold a fresh departmental enquiry. There upon the Collector framed a charge against the applicant under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950 and asked the applicant to give his explanation and to cross-examine witnesses and to produce defence. The applicant filed a writ petition after the charge was served on him and his contention was that a fresh departmental enquiry under Rule 16 cannot be held against him when a similar enquiry had already been held by the Collector previously, resulting in his exoneration. In those facts, it was held that on principles of justice, enquiry and good conscience it is wrong in the absence of provision in the Service Rules to permit such a second departmental enquiry.

32. In these cases, the disciplinary enquiries were pending before the disciplinary authorities and they were not completed by them During their pendency, the then Chief Justice Called for the files and exonerated the petitioners of the charges, which he was not competent to do. In these circumstances, there was no exoneration in the sense akin to acquittal. The decision of Dwarkachand's case (supra) is, therefore, clearly distinguishable. The second argument is, therefore, rejected

33. The third point canvassed by the learned Counsel for the petitioner is that the present Chief Justice who is successor in-office could not review the orders of the predecessor in-office. This will amount to reviewing of order in the absence of statutory provisions. In this connection, Mr. Mathur, learned Counsel for the petitioners placed reliance on the decisions of State of Assam v. Raghava Rajgopalchari 1972 SLR 44 and Deoki Nandan v. The Agra District Co-operative Bank, Agra and Ors. 1972 SLR 803 In State of Assam's case (supra), their Lordships of the Supreme Court have observed as follows:

The learned Counsel for the State sought to argue before us that the date '16th March 1954' occurring in the order dated January 28, 1964, was mentioned due to mistake and the proper date which should have been mentioned was the date of superannuation, namely June 30, 1953. He says that the order dated July 23, 1953 continuing the services of the petitioner after the date of super annexation was bad in view of the ruling of this Court in State of Assam v. Padma Ram Borth : AIR1965SC473 But we are unable to appreciate how he is entitled to raise the point. The writ was brought to challenge this order. No such petition, even if it be competent, was filed by the State itself The respondent to a writ petition cannot be allowed to attack its own order as a respondent

34. In Deoki Nandan Parashar's case (supra), it was ruled that the High Court is not competent to deal with the merits of the order, which is not challenged and it was observed as follows:

We think there is considerable force in this contention. The petitioner's complaint was against the order of the successor Registrar. He was not interested in having the first Registrar's order set aside. Only the Bank might have been interested in setting aside that order. But the Bank had not taken any steps either by way of appeal to the Government or by any writ petition to have the order of Register dated September 3, 1966 set aside Since no return was filed, we cannot even assume that the Bank had asked for setting aside that order.

35. In my humble opinion, these decisions have no relevance to the cases in hand. In J.K. Sinha's case, an order was made recalling the order exonerating of the charges and for resuming the enquiry. In Saligram's case, by the impugned order, the order exonerating of the charges was recalled and a direction was made to complete the enquiry and to dispose of the matter in accordance with the law. The case of the respondents is that the administrative orders are liable to the reconsidered, and orders passed by predecessor in-office when they are without jurisdiction can be ignored and the enquiries can be continued from the stage at which they were snapped. The then Chief Justice called for the files relating to the disciplinary enquires pending before the disciplinary authorities and exonerated the petitioners, which could only be done after full fledged enquires by the disciplinary authorities. The then Chief Justice was not competent to exonerate them in the manner in which he did. In these circumstances, in my opinion, it cannot be said that the present Chief Justice could not recall them for the reasons mentioned in the impugned orders. This contention is also devoid of force.

36. The Learned Government Advocate conceded that Rule 32 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 has no application. But the alternative argument of Mr. Mathur is that the impugned orders are nothing but review of the orders exonerating the petitioners of the charges and, therefore, Rule 32 of the aforesaid Rules is applicable. Learned Counsel submitted that as the review was done and that as the conditions laid down therein are not fulfilled, the impugned orders are bad, for, review could be done by the appellate authority and that too within the period prescribed for it. In this connection the referred too the decision of Commissioner of Income Tax v. Rao Raja Kalyan Singh 1973 RLW 434.

37. Proviso to Rule 23(3) of the aforesaid Rules reads as under:

Provided that a member of (the Rajasthan Higher Judicial Service or) the Rajasthan Judicial Service against whom an order imposing any of the penalty specified in Rule 14 except the penalty of removal or dismissal from service is made by an authority other than the Government may appeal only to a (Committee consisting of the three Judges of the Rajasthan High Court nominated by the Chief Justice).

38. Relevant part of Rule 32 is as follows:

The authority to which an appeal against an order imposing any of the penalties specified in Rule 14 lies may, if no appeal has been preferred there from of its own motion or otherwise, call for and examine the record of the case in a disciplinary proceedings held by an authority subordinate to it and after making further investigations, if necessary, revise any order pissed in such a case and after consultation with the Commission where such consultation is necessary:

(a) ....

(b) ....

(c) ....

(d) ....

Provided that:

(1) ....

(2) ....

(3) no action under this rule shall be initiated more than 6 months after the date of order to be revised.

The power under Rule 32 can only be exercised by the appellate authority 'against an order imposing any of the penalties specified in Rule 14 and when no appeal has been preferred therefrom. The power can be exercised suo motu or otherwise by the appellate authority. In these cases, no order imposing any penalty was passed and disciplinary, enquiries are still to be completed in accordance with law. The decision relied on by the learned Counsel for the petitioner is not applicable. I am afraid the contention cannot be accepted for, r 32 has no application and when it has no application, the question of the fulfillment of the conditions laid down therein does not arise.

39. No other point was pressed by the learned Counsel for the parties.

40. As all the contentions raised by the learned Counsel for the petitioners have been found to be untenable, the writ petitions deserve to be dismissed.

41. The result is that the writ petitioner are dismissed. In the circumstances of the case, there will be no order as to costs.


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