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Ugam Raj Bhandari Vs. the State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Special Appeal No. 2/1975
Judge
Reported in1979WLN737
AppellantUgam Raj Bhandari
RespondentThe State of Rajasthan and anr.
DispositionPetition dismissed
Cases ReferredN.A. Subrahmaniam Iyer v. Emperor
Excerpt:
rajasthan civil services - (classification, control and appeal) rules, 1958--rule 16(5)--appointment of lawyer as defence nominee--department's case presented by district judge--defence nominee a civil judge with 12 years expedience--held refusal of permission to engage lawyer was not unreasonable & no prejudice is caused.;as shri gattani was not all gal practitioner, the appellant was not entitled to engage a (sic) practitioner to present his case before the disciplinary authority in view of rule 165 of the rules. the appellant was however assisted by shri r.s. verme, who was working as civil judge at that time, and who was a judicial officer of 12 years standing morever, the appellant himself is a law graduate and was walking as additional district and sessions judge at that time......s.c. agarwal, j.1. shri ugam raj bhandari, the appellant in this special appeal was a member of the rajasthan higher judicial service. in january 1969, he was posted as additional district & sessions judge, jhalawar. while working as additional district & sessions judge, jhalawar, the appellant was trying civil suit no. 108/l961-4/1968 mansukhlal and anr. v. state of rajasthan and ors. by letter dated september 1, 1969, the registrar of the high court informed the appellant that it was proposed to hold an inquiry against him under rule 16 of the rajasthan civil services (classification control and appeal) rules, 1958, (hereinafter referred to as the c.c.a. rules) and in that connection copies of the memorandum and the statements of allegations and charge sheet dated september 1, 1969.....
Judgment:

S.C. Agarwal, J.

1. Shri Ugam Raj Bhandari, the appellant in this Special Appeal was a member of the Rajasthan Higher Judicial Service. In January 1969, he was posted as Additional District & Sessions Judge, Jhalawar. While working as Additional District & Sessions Judge, Jhalawar, the appellant was trying Civil Suit No. 108/l961-4/1968 Mansukhlal and Anr. v. State of Rajasthan and Ors. By letter dated September 1, 1969, the Registrar of the High Court informed the appellant that it was proposed to hold an inquiry against him under Rule 16 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958, (hereinafter referred to as the C.C.A. Rules) and in that connection copies of the memorandum and the statements of allegations and charge sheet dated September 1, 1969 consisting of two charges, drawn by Shri Justice Jagat Narayan, who was the Administrative Judge of the Rajasthan High Court at that he was also sent to the appellant. In reply to the aforesaid communication, the appellant submitted a written statement of his defence. The said written statement of the appellant was considered by Shri Justice Jagat Narayan, who has taken over as the Chief Justice of the High Court by that time, and by his order dated 10th January, 1970, Hon'ble the Chief Justice, held that he was satisfied that it was necessary, to proceed further with the departmental inquiry against the appellant. By his order dated January 10, 1970, Hon'ble the Chief Justice nominated Shri Justice P.N. Shinghal as the Disciplinary Authority in the case Shi Justice Shinghal thereafter conducted an inquiry and submitted his report dated 4th March, whereby he found that charge No. 1 had not been proved against the appellant but that charge No. 2 had been fully proved against the appellant. The report of the Disciplinary Authority (Shri Justice Shinghal) was considered by the High 'Court and the High Court recommended to the Government that the penalty of removal from service be imposed upon the appellant. After taking into consideration, the recommendations of the High Court, the State Government provisionally decided to remove the appellant from service and a notice dated July 9, 1970 was issued whereby the appellant was required to show cause why the penalty of removal from service be not imposed upon him In response to the said show cause notice, the appellant submitted his reply dated 30th September, 1970 The matter was referred, again to the High and the High Court, after considering the reply of the appellant, expressed the opinion that the appellant should be removed from service The matter was also referred to the Rajasthan Public Service Commission which took a different view and advised that a lesser penalty of reduction in rank would be sufficient. The State Government disagreed with the advice of the Rajasthan Public Service Commission and, agreeing with the opinion of the High Court, the Governor passed an order dated 4th December, 1974, removing the appellant from service.

2. While the matter was under the consideration of the State Government the appellant, on 26-11-1974 filed a writ petition in this Court under Article 226 of the Constitution for the issue of an appropriate writ or a direction, quashing the under of suspension dated 10th January, 1970, the inquiry proceedings and the report of the High Court and further proceedings in the matter. During the pendency of the writ petition of the appellant, the order dated 4th December 1974 removing him from service was passed by the State Government. In the writ petition of the appellant, a notice was issued to the respondents to show cause why writ petition should not be admitted and in response to the said show cause notice, a reply was filed on behalf of the respondents. The appellant filed a rejoinder to the aforesaid reply filed on behalf of the respondents, wherein he also prayed for quashing of for the order dated 4th December, 1974.

3. The writ petition of the appellant was heard by a learned Single Judge of this Court (Hon'ble D.P. Gupta, J.) and before the Single Judge the learned Counsel for the appellant urged the following four contentions.

(i) The Hon'ble the Chief Justice was not empowered to pass the order dated 10th January, 1970, suspending the appellant and nominating Shri Justice P.N. Shinghal to act as the Disciplinary Authority to hold an enquiry against the appellant and that the Full Court alone was competent to pass an order of suspension and tike disciplinary proceedings against a member of the Rajasthan Higher Judicial Service like the petitioner. The resolution passed by the Full Court on May 6, 1967, whereby the power of suspending a judicial officer wag delegated to the Hon'ple Chief Justice and the power to take disciplinary action against a judicial officer subordinate to the High Court was delegated to the Administrative Judge or a Judge nominated by the Hon'ble Chief Justice, his neither teen promulgated nor published and, therefore it could not have been enforced.

(ii) A reasonable opportunity to defend himself was not afforded to the appellant in as much as the appellant was not allowed to engage the services of a lawyer to represent him before the Disciplinary Authority, the application filed by the appellant for examining complainant Sadhu Ram and Thanwer Das as court witnesses was rejected by the Disciplinary Authority, the account books of Mansukhdas were not produced before the Disciplinary Authority and the appellant was not given sufficient time by the Disciplinary Authority to prepare his argument after the recording of the evidence was over.

(iii) The finding of the Disciplinary Authority holding that charge No. 2 was proved against the appellant was based on no evidence.

(iv) Shri Justice Bhargava was not informed of the meeting of the Full Court in which the report of the Disciplinary' Authority was discussed and it was recommended by the Court that the appellant be removed from service.

4. Ali the aforesaid contentions were rejected by the learned Single Judge who dismissed the writ petition of, the appellant by his order dated December 16, 1974. The learned Single Judge has held that the publication of the Resolution dated May 6, 1967, passed by the Full Court was not necessary and that in view of the said Resolution the powers of the Full Court as regards various proceedings in respect of disciplinary action against subordinate judicial officers had been delegated to the Hon'ble Chief Justice, the Administrative Judge, the fudge nominated by the Hon'ble Chief Justice and the Committee of Judges of the Court and that the Hon'ble Chief Justice was competent to pass the order dated January 10, 1970 suspending the appellant and nominating Shri Justice P.N. Shinghal as the Disciplinary Authority. The learned Single Judge further held that there was no denial of reasonable opportunity to the appellant to defend himself before the Disciplinary Authority as a result of the appellant not being allowed to engage the services of a lawyer in as much as the petitioner was assisted by a judicial officer of 12 years standing. As regards the complaint abut the rejection of his application for examination of complainant Sadhu Ram and Thanwar Das as court witnesses the learned Single Judge has observed that the appellant could not insist on the examination of the aforesaid persons as court witnesses and that the appellant was free to produce them as his witnesses and that he did not choose to do so. With regard to the production of the account books of Mansukhlal the learned Single Judge has observed that Mansukhlaj had been produced as a witness on behalf of the defence and that it was open to the appellant to get his account books produced tout he failed to do so and that there was nothing on record to short that the petitioner made any request before the Disciplinary Authority that the account books of Mansukhlal should be taken in evidence The learned Single Judge was farther of the view that the Disciplinary Authority had given good and sufficient reasons in his order rejecting the application of the appellant for adjournment of the hearing and that the counsel for the appellant bad failed to show that any prejudice was caused to the appellant by the refusal of adjournment by the Disciplinary Authority. The learned Single Judge has also observed that in order to arrive at the finding with regard to charge No. 2 the Disciplinary Authority was entitled to rely on direct as well as circumstantial evidence and that the report of the Disciplinary Authority shows that on the basis of the evidence on record and from this circumstantial evidence referred to by him, the Disciplinary Authority came to the conclusion that the appellant had received the articles in question without making any payment for them and that it could not be said that the aforesaid finding recorded by the Disciplinary Authority was based on no evidence. The learned Single Judge has also held that the reply of the respondents shows that Shri Justice Bhargava was informed of the meeting of the Full Court in which' the report of the Disciplinary Authority was discussed and that he bid attended the meeting which was held on March 16, 1970 but did not attend the adjourned meeting on March 18, 1970 and that what is required is that all the Judges should have been informed of the meeting and that it is not necessary that they should all attend the meeting of the Full Court provided the quorum is complete. According to the learned Single Judge, in view of the reply of the respondents, the contention of the appellant that Shri Justice Bhargava had no intimation of the Full Court meeting held on March 18, 1970 could not be accepted.

5. Being aggrieved by the aforesaid order of tin learned Single Judge, dismissing the writ petition, the appellant had filed this Special Appeal.

6. Shri M.M. Singhvi, the learned Counsel for the appellant did not urge contention No. (iv) with regard to Shri Justice Bhargwa having not been formed of the meeting of the Full Court in which the report of the Disciplinary Authority was discussed and it was recommended by the Court that the appellant be removed from service. The learned Counsel for the appellant, however, reiterated the first three conterminous which were urged by him before the learned Single Judge. In addition to the contentions aforesaid, the learned Counsel raised the further contention that even if the Resolution dated May 6, 1967, passed by the Full Court is assumed to be valid and operative, the disciplinary proceedings, having already been initiated against the appellant, by the Administrative Judge, by his order dated September 1, 1969, the Administrative judge alone was entitled to proceed with the said disciplinary proceedings and the Hon'ble Chief Justice was not competent to nominate Shri Justice P.N. Shinghal as the Disciplinary Authority in respect of proceedings which were pending before the Administrative Judge on that date.

7. In so far as the denial of a reasonable opportunity to defend] him sell bf fore the disciplinary Authority is concerned, the grievance of the appellant is, that he was not allowed to engage a lawyer to defend himself. Shri R.S. Verma, who was deputed as Judicial Officer to assist the appellant did not have sufficient time to obtain instructions from the appellant in as much as he reached Jhalawar on the night before the inquiry began on 9th February, 1970 and the Disciplinary Authority refused to grant time to the appellant to instruct Shri R.S. Verma and that recording of evidence was concluded on February 10, 1970 and the date for hearing arguments was fixed in February 11, 1970 and the result was that the appellant could not have sufficient opportunity to prepare the arguments in the case. In our Opinion, none of grounds urged by the appellant in support to his contention that he was denied a reasonable opportunity to defend himself before the Disciplinary Authority merits acceptance. The procedure for conducting the disciplinary proceedings is regulated by the CCA Rules. Clause (5) of Rule 16, which lays down the procedure for imposing major penalties, provides that the Disciplinary Authority may nominate any person to present the case in support of the charges before the Authority and the Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority but may not engase legal practitioner for the purpose unless the person nominated by the Disciplinary Authority, is a legal practitioner or unless the Disciplinary Authority having regard to the circumstance of the case, so permits. In the present case Shri R.D. Gattani who was District and Sessions Judges, Jaipur City, had been appointed as Officer Incharge to present the case before the Disciplinary Authority. As Shri Gattani was not a legal practitioner, the appellant was not entitled to engagea legal practitioner to present his case before the Disciplinary Authority in view of Rule 16(5) of the Rules. The appellant was however, assisted by Shri R.S. Verma who was working as a Civil Judge at that time, and who was a Judicial Officer of 12 years' standing. More ever the appellant himself is a law-graduate and was working as Additional District and Sessions Judge at that time In these circumstances, it could not be said that the appellant has suffered any prejudice on account of the refusal of the Disciplinary Authority to permit the appellant to engage the services of legal practitioner and the discretion exercised by the Disciplinary Authority cannot be unreasonable. As regards the complaint of the appellant that the did not have sufficient time to properly instruct Shri R.S. Verma before the record of the evidence the disciplinary proceeding commenced 9th of February we have examined the record and we find that there is an acquitted examination of witnesses by Shri R.S. Verma and we find no merit in the contention of the appellant that he was prejudicially effected on account of the refusal of the Disciplinary Authority to adjourn the proceedings on 9th of February, 1970 Similarity there is no merit to the grievance of the appellant that the recording of evidence was spieled on 10th of February and Disciplinary Authority fixed the case for hearing arguments on the next day a result of which Shri R.S. Verma and the appellant could not get sufficient opportunity to prepare the arguments. The record of the evident recorded before the Disciplinary Authority consists of the evidence three witnesses examined on behalf of the prosecution and six witnesses examined by the appellant in his defence. The statement of the witnesses are also not very long and it cannot be held that Shri R.S. Verma and the appellant could not adequately prepare the arguments specially when both of them were present when the statements were recorded andevery thing was fresh in their mind We, therefore, reject the contention of the learned Counsel for the appellant that the appellant was denied the reasonable opportunity to defend himself before the Disciplinary Authority.

8. We are also in agreement with the learned Single Judge that the Disciplinary Authority was entitled to arrive at the conclusion that the appellant had received the articles which are the subject matter of charge No. 2 without making any payment for them on the basis of direct as well as circumstantial evidence. A perusal of the report of the Disciplinary Authority in so far as relates to charge No. 2 is concerned shows that the Disciplinary Authority has chosen to place reliance on the evidence of Umrao Singh (P.W. 2) as well as other circumstances brought on record to hold that Shri Mansukhlal had paid for the purchases of the articles in question and the Disciplinary Authority has given cogent reason for disbelieving the defence version of the appellant that the appellant had paid the price of the articles later. In our view the aforesaid findings recorded by the Disciplinary Authority cannot be held to be findings based on no evidence so as to justify interference by issue of a writ of certiorari under Article 226 of the Constitution.

9. We are, however, unable to agree with the learned Single Judge that publication of the Resolution dated May 6, 1967, passed by the Full Court was not necessary and that in view of the said Resolution the powers of the Full Court as regards various proceedings in respect of disciplinary action against subordinate judicial officers had been delegated to the Chief justice the Administrative Judge, the Judge nominated by the Chief Justice and the Chief Justice was competent to pass the order dated January 10, 1970, suspending the appellant and nominating Shri Justice P.N. Shinghal as the Disciplinary Authority.

10. Before we proceed to deal with the rival contentions urged before us on this aspect of the case, we may observe that prior to 1967 it was assumed that the power to lake disciplinary action against a Judicial Officer Was governed by the provisions of the C.C.A. Rules. Part V of the C.C.A. Rules. Part V of the C.C.A. Rules deals with discipline; Rule 14 prescribes the nature of penalties whish may be imposed on a Government servant; Rule 15 prescribes the Disciplinary Authority, who can impose the said penalties; Rule 16 prescribes the procedure for imposing major penalties of reduction in rank compulsorily retirement, removal from-service and dismissal from service; Rule 17 lays-down the procedure for imposing minor penalties; and Rule 23 provides for an appeal against orders, imposing penalties. In addition to the power of appeal a power of revision has been conferred under the CCA Rules and power has been conferred tin the Governor to review an order.

11. On 10th September, 1965, the Supreme Court in its decision in State of West Bengal and Anr. v. Nripendra Nath Bagchi : (1968)ILLJ270SC , laid-down that Article 235 of the Constitution vest control of the District courts and the courts subordinate there to in the High Court and the control which is vested in the High Court includes the control over the conduct and discipline of the Judges. According to the aforesaid decision of the Supreme Court, the control which is vested in the High Court is a complete control subject only to power of the Governor in the matter of appointment (including dismissal and removal) and that within the exercise of the control vested in the High Court, the High Court can bold inquiries and impose punishment order than dismissal or removal.

12. After the aforesaid decision of the decision of the Supreme Court in N.N. Bench's case : [1965]57ITR306(SC) a Division Bench of this Court in Anondilal v. State of Rajasthan 1966 R.L.W. 359 (Anandilal Verma Case I) held that on a proper interpretation of Article 235 of the Constitution the 'control' vested in the High Court includes disciplinary control over the members of the judicial service in the subordinate courts courts and the exercise of the said disciplinary jurisdiction can be initiated only by the High Court & the High Court can finalise disciplinary proceedings & the take appropriate action in all cases where punishment is not dismissal or removal from service. In the said case the disciplinary proceedings had been initiated against Shri Anandilal Verma, who was a judicial officer, & Shri Justice C.B. Bhargava had been, appointed as Inquiry Officer by the Hon'ble the Chief Justice under Rule 16(4) of the C.C.A. Rules, & after holding an inquiry Shri Justice Bhargava had recommended punishment of dismissal or removal of the petitioner Anandilal Verma from service & on the, basis, of the said recommendation the Governor had provisionally decided that, Shri Anandilal Verma should be dismissed from the Rajasthan Judicial Service and a notice was issued to Shi Anandialal Verma to show cause against the action proposed to-be taken. This Court, while quashing the said show cause notice, laid-down that the scheme of the Rajasthan High Court Rules, 1952, contemplates that the administrative control is vested in the entire Court and that the entire Court should exercise it except on proof that under a valid Rule or authorisation any Single Judge or a cumber of Judges can act for the whole Court. This Court has further observed 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 and that in the absence of a 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, a Single Judge nominated by the Chief Justice could not finally determine whether the punishment of dismissal or removal from service should be recommended to the Governor.

13. After the aforesaid decision of this Court in Anandilal Verma's case No. 1(2) the matter was considered by a meeting of the Full Court and a Resolution dated 6th May, 1967 (hereinafter referred toas the 1967 Resolution) was adopted by the Full Court. In the said Resolution it was reiterated that under Article 235 of the Constitution, the control over District Courts and courts subordinate thereto, including the postings and promotions of and the granting of leave to persons belonging to the judicial service of the State and holding any past inferior to the post of District Judge, vests in the High Court and that the CCA Rules which make provisions for such matters cannot apply to the presiding officers of the District Courts & the courts subordinate thereto. The aforesaid Resolution regulated the procedure for taking disciplinary action in respect of presiding officer of the said courts and empowered the Chief Justice and the Administrative Judge to take action against subordinate judicial officers. Part I of the said resolution dealt with the power of suspension and empowered the Chief Justice to place a Judge of the sub ordinate court under suspension. Part II dealt with discipline and prescribed the various penalties which could be imposed on a subordinate judicial officer. The said part also prescribed that the Administrative Judge or a Judge nominated by the Chief Justice shall, as Disciplinary Authority, have the power to take disciplinary action and shall be empowered to impose on a subordinate judicial officer any of the penalties except those of removal and dismissal from service As regards the removal or dismissal from service of a subordinate judicial officer, it was provided that the order of the Administrative judge or the Judge nominated by the Chief Justice recommending the removal or dismissal of the 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 which they thought proper. It was further provided that if the Full Court was of the opinion that subordinate judicial officer should be removed or dismissed from service, it should send its recommendations to the State Government for necessary action in accordance with the provisions of Article 311 of the Constitution Part III of the 1967 Resolution dealt with appeals. In Part IV of the 1967 Resolution it was laid down that the procedure provided in the CCA Rules for imposing major or miner penalties shall apply 'mutatis mutants' whenever it was proposed to impose any such penalty.

14. The question regarding disciplinary proceedings against judicial officers was again considered at a meeting of the Full Court in 1971 and a Resolution ('hereinafter referred to as the '1971 Resolution') dated 30th October, 1971 was adopted, whereby the 1967 Resolution was superseded. In the 1971 Resoultion, it is stated that some of the provisions of the CCA Rules are inconsistent with the provisions of Article 235 of Constitution, vesting the control over judicial officers in the High Court in as much as the powers which they purport to confer on ether authorities ate vested in the High Court under Article 235 of the Constitution While referring to the 1667 Resolution, it is stated that although the said Resolution was substantially in accordance with Article 235 of the Constitution, but strictly speaking the correct legal position is that the CCA Rules are applicable except in so far as they ere inconsistent with the provisions of Article 235 of the Constitution. In the 1971 Resolution, the provisions of the CCA Rules which are ultravires Article 235 of the Constitution in so far as their application to disciplinary proceedings against judicial officers is concerned, have been remunerated and the 1967 Resolution has been amended and it has been declared that the C.C.A. Rules cannot apply to the presiding officers of the District Court and the courts subordinate thereto in so far as trey are inconsistent with the provisions of Article 235 of the Constitution. In the 1971 Resolution it is further stated that the control under Article 235 is vested in the Full Court but as it was not convenient for the Full Court was delegating its powers in the manner laid down in the said Re-solution. The 1971 Resolution empowers the Chief Janice and the Administrative Judge to initiate disciplinary action against judicial offers, including District Judges, and empowers Chief justice to pace a judge of a subordinate Court under suspension. Under the said Resolution, the Administrative Judge or the Judge nominated by the Chief Justice have been empowered to take disciplinary action and to impose on a judicial officer any of the penalties enumerated in Rule 14 of the CCA. Rules except those of removal or dismissal from service and it is further laid down that 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 and if the Full Court was of the opinion that the subordinate judicial officer should be removed or dismissed from service it shall send its recommendations to that effect to the State Government for necessary actions in accordance with the provisions of Article 311 of the Constitution. In the present case, be disciplinary proceeding against the appellant were initiated in 1969 prior to the passing of the 1971. Resolution and, therefore, we are concerned with the position as it stood under the 1967 Resolution.

15. The submission of the learned Counsel for the appellant is that the 1967 Resolution had the effect of superseding the provisions contained in the CCA Rules in so far as judicial officers were concerned and to lay down special provisions with regard to disciplinary proceedings against judicial officers and that it was incumbent that the 1967 Resolution should have been duty published and in the absence of such a publication of the 1967 Resolution the provisions contained in the said Resolution did not ave legal effect and any action taken in pursuance of the provision contained in 1967 Resolution was null and void. In support of his aforesaid submission the learned Counsel for the appealant had placed reliance on the decision of the Supreme Court in Harla v. The State of Rajasthan : [1952]1SCR110 and the decision of the Full Bench of the Bombay High Court in Chandrakant Sakharam Karkhanis and Ors. v. State of Maharashtra and Ors. A.I.R. 1977 Bom. 1993. The learned Counsel for the appellant ahs also placed reliance on the observation of this Court in Anandilal Verma v. State of Rajasthan 1975 R.A.W. 34 (Anandilal Verma case II) to the effect that before 1971, the Chief Justice was not competent to appoint a Judge to act as a Disciplinary Authority to take disciplinary action against the member of the subordinate judiciary.

16. The learned Additional Government Advocate not dispute the fact that the 1967 Resolution has net been published He has, however, submitted that said Resolution merely involved delegation of powers of the High Court in respect of disciplinary matters to the Chief Justice and the Administrative Judge and that the failure of the publication of the 1957 Resolution does not vitiate the auction taken in pursuance of the said resolution. The Addl. Government Advocate has also pointed cut that in Anandilal Verma Case (II) 1975 R.L.W. 34, this Court was examining the validity of the order dated 23rd January, 1963, passed by the Hon'ble the Chief Justice, nominating Hon'ble Mr. Justice Bhargava as the Disciplinary Authority and the question with regard to the validity of the 1967 Resolution was not an issue before this Court & thus the observation made by this Court to the effect that before 1971, the Chief Justice was not competent to appoint judge to act as a disciplinary authority and take disciplinary action against the member of the subordinate judiciary cannot be regarded as finding with regard to the, invalidity of the 1967 Resolution.

17. In so for as law which affect the citizen, it is well settled that the law should be promulgated or published before it can be operative. In Marla v. The State of Rajasthan : [1952]1SCR110 , the Supreme Court has observed:

In the, absence of any special law or custom, we are of the, opinion that it would be against the principles of natural justice to permit the subjects of a State to be punished or penalised by laws of which they had no knowledge and of which the could not even with the exercise of reasonable diligence have acquired any, knowledge, natural justice required that before a law can become operative it must be promulgated or published. It must be broadcast in some recognisable way so that all men may know what it is or, at the very least, there must besoms Special rule or regularition or customary channel by or through which such knowledge can be required with the exercise of due and reasonable diligence. The thought that a decision, reached in the recesses of a chamber, on which the public have no access and to which even their accredited representatives have no accused and of which they can normally know nothing, can nevertheless affect their, lives, liberty and property by the mere passing of a Resolution, without anything more is abhorrent to a civilised man. It shocks, his conscience. In the absence therefore of any law, rule, regulation or custom we hold that a law cannot come into being in this way Promulgation or publication of some reasonable sort is essential.

18. The aforesaid principle is equally applicable to subordinate Legislations, viz-Rules, Regulations and bye laws. In Harla v. State of Rajasthan : [1952]1SCR110 , the Supreme Court has pointed of that in so far as the Acts, of Parliament are concurred, they are publicly enacted and the debate are open, to the public and the Acts are passed by the accredited representatives of the people who in theory can be trusted to see that their constituents know what has been done and they also receive wide publicity in papers and, now, over the wireless & that this is not so with regard to the statutory orders and there must therefore be promulgation and publication in their casts, though the mode of publication could vary.

19. In Chandrakent Sakharam Kurkhanis and Ors. v. State of Maharashtra and Ors. : AIR1977Bom193 , a Full Bench of the Bombay High Court was concerned with the Rules framed by the Governor in exercise of the powers conferred on him under the proviso to Article 309 of the Constitution. The Bombay High Court has Lid down that such Rules' are legislative in character since they are to affect Government meat employees in public services. The high Court, while holding that it was not necessary that the publication (c) the Rules should be in the official Gazette, has laid-down that:

It is unquestionably necessary that there should be some publication in sense that the rules so framed whatever form they take say a letter, memorandum, Circular, Order of Resolution, most be made known to all the persons who are likely to be affected thereby and such persons must have access to these rules or to these instrument; in that sale promulgation or publication of rules is undoubtedly essential. But there is no requirement that publication should be iii a particular manner viz. by publication in the official Gazette.

20. We find ourself in agreement with the aforesaid observations.

21. The question that arises for consideration is whether the 1967 Resolution can be equated with rules or regulations which are legislative in character or it is a mere administrative order, providing for delegation of powers. It has already been noticed earlier that the 1967 Resolution sought to regulate the procedure for taking disciplinary action in respect of the presiding officer of District Courts and the courts subordinate thereto Prior to the passing of the 1967 Resolution, the matters relating to the disciplinary action against the aforesaid officers were governed by the provisions contained in the CCA Rules. The 1967 Resolution sought to change that position by making independent provisions relating the procedure for taking such action. Under Rule 13 of the CCA Rules, the power of suspension is conferred on the Appointing Authority or any Authority to which is subordinate or any other authority empowered by the Government, but under the 1967 Resolution, the power of suspension was conferred on the Chief Justice. Rule 14 of the CCA Rules prescribes the various penalties which can be imposed oh a Government servant. The 1967 Resolution also specially enumerated the penalties which car, be imposed a subordinate judicial officer. As opposed to Rule 15 of the CCA Rules which prescribes that the Government or the authority specially empowered by the Government in that behalf is the disciplinary authority competent to impose a pen shy, separate provisions had been made in the 1967 Resolution laving down that the Administrative Judge or a Judge nominated by the Chief Justice shall have the power to take disciplinary action and shall be empowered to purpose the penalties other than those of removal or dismissal from service on a subordinate judicial officer. The 1967 Resolution thus-sought to amend the Rules which were applicable to judicial officers & to lay down a fresh set of Rules for regulating the procedure for taking disciplinary action against judicial officers. In our opinion, the 1967 Resolution was, therefore, legislative in character and cannot be regarded as a purely administrative order involving delegation of power of the High Court in favour of the Chief Justice and the Administrative Judge. In this context reference may be made to the decision of the Supreme Court in State of UP v. Babu Ram Upadhyaya : 1961CriLJ773 , wherein it has been observed that 'the rules governing disciplinary proceedings cannot be treated as administrative directions.

22. Once it is held that the 1967 Resolution was legislative in character, it necessarily follows that it must have been published or promulgated in a manner that the conditions of the said resolution were brought to the notice of all the judicial officers who were affected by the said Rules in the absence of such a publication, the said Resolution cannot have any operation in law. The learned Single judge appears to have divided the 1967 Resolution in two parts, one involving delegation of the powers of the Full Court and the other relating to the filing of appeals and has observed that in so far as delegation of powers of the Court are concerned, no publication was required and that provisions relating to appeal had no application in the case of the appellant. In our view, it is not possible to thus bifurcate the 1967 Resolution. The 1967 Resolution must be read as a whole and, if thus read, it will be found that it regulates the procedure in relation to suspension, imposition of penalties and filing of appeals against orders imposing penalties on judicial officers All these matters affect judicial officers and it was, therefore, necessary that the 1967 Resolution should have been duly published in a manner as to bring the conditions of the said Resolution to the knowledge of all the judicial officers who were to be affected by the said resoultion.

23. It is true that in Anandilal Verma Case II 1975 R.L.W. 34, this Court was only required to deal with the validity of the order passed by the Hon'ble Chief Justice prior to the passing of the 1967 Resolution and the validity of the 1967 Resolution was not in issue before this Court. But we find that in the judgment, this Court has taken note of the 1967 Resolution as well as the 1971 Resolution and his observed that before 1971, the Chief Justice was not competent to appoint a Judge to act as disciplinary authority to take disciplinary action against the members of the subordinate judicially and that the powers of the Court were delegated by the Full Court to the Chief Justice in the year 1971. The aforesaid observation seems to proceed on the basis that the 1967 Resolution did not have the effect of delegating the powers of the Full Court on the Chief Justice. Although the question with regard to the validity of the 1967 Resolution does not appear to have been considered by this Court in Anandilal Verma case II 1975 R.L.W. 34, but in view of our finding that 1967 Resolution was inoperative for the reason that it had not been duly published, we find ourselves in agreement with the observation of this Court in Anandilal Verma Case II 1975 R.L.W. 34 that prior to 1971, the Chief Justice, was not competent to appoint a Judge to act as a disciplinary authority to take disciplinary action against the members of the subordinate judiciary In our opinion, in 1969 and 1970 when disciplinary proceedings were initiated against the appellant, the legal position was the same as it was in the case of Anandilal Verma Case II 1975 R.L.W. 34 and in view of the aforesaid decision, it must be held that power to initiate disciplinary proceedings against the appellant vested in the Full Court only and the Chief Justice and the Administrative Judge were not competent to initiate disciplinary proceedings against the appellant, nor was the Chief Justice competent to nominate a judge as disciplinary authority to take the disciplinary proceedings against the appellant. The notice dated 1st September, 1969 issued by the Administrative Judge and the order dated 10th January, 1970 passed by the Chief Justice, nominating Shri Justice P.N. Shinghal as a Disciplinary Authority and the proceedings of the disciplinary inquiry conducted by Shri Justice P.N. Shinghal cannot, therefore, be upheld.

24. The next submission of the learned Counsel for the appellant is that even if it be assumed that the 1967 Resolution was valid and operative, the power to take disciplinary action had been vested under the 1967 Resolution in the Administrative Judge or a Judge nominated by the Chief Justice and that if the Administrative Judge has already initiated disciplinary proceedings against a judicial officer and the said disciplinary proceedings were pending before him, it was not open to the Chief Justice to withdraw the said disciplinary proceedings from the Administrative Judge and assign the same to a judge nominated by him According to the learned Counsel for the appellant, the Administrative Judge exercised coordinate jurisdiction with the Chief Justice in the muter of taking disciplinary action against judicial officers and the Administrative Judge could not be regarded as subordinate to the Chief Justice in that matter and, therefore, the Chief Justice could not nominate a Judge to hold a disciplinary inquiry in a case where the Administrative Judge was already in seisin of the matter. The learned Counsel for the appellant has pointed out that in the present case, disciplinary proceedings were initiated against the appellant by Snri justice Jagat Narayan, in his capacity as the Administrative Judge by memorandum date September 1, 1969 and that the mere fact that subsequent thereto Shri Jagat Narayan became the Chief justice of this Court in December, 1969 did not entitle him to nominate Shri Justice P.N. Shinghal as the disciplinary authority by his order dated January 10, 1970, in as much as on that date Shri Justice Chhangani was the Administrative Judge and was in charge of the inquiry as the Disciplinary Authority. Tae submission of the learned Counsel for the appellant is that the order dated January 10, 1970, parsed by the Chief justice and the inquiry conduced by Shri Justice P.N. Shinghal in his capacity as Disciplinary Authority were null and void and the impugned order of removal passed oh the basis of the report of Shri Justice P.N. Shinghal is also not sustainable in law.

25. The Additional Government Advocate-has submitted that 'under'1967 Resolution, the Chief justice as well as the Administrative Judge have been vested with the power of taking disciplinary actionn against a judicial officer and the order dated January 10, 1970, passed by the Chief Justice, nominating Shri Justice P.N. Shinghal as the Disciplinary Authority was passed in consonance with the provisions of the 1967 Resolution and that the laid order cannot be held to be an order parsed without jurisdiction. The learned Add Government Advocate has further submitted that the appellant did rot raise any objection at to the jurisdiction of Shri Justice P.N. Shinghal to conduct the inquiry and in View of his failure to raise such ah objection at that time he is not entitled to challenge the proceedings of the departmental inquiry conducted by Shri Justice P.N. Shinghal. The learned Addl. Government Advocate has further submitted that in the present Case Shri Justice Jagat Narayan had initiated the departmental inquiry against the appellant end on his becoming the Chief Justice, he Was competent to assign the said inquiry to a Judge nominated by him and the aforesaid action of the Chief Justice did not involve withdrawing the departmental enquiry from the Administrative Judge and assigning it to a Judge nominated by the 'Chief' Justice. The Addl. Government Advocate has lastly submitted' that In any event the action of the Chief justice in nominating Shri Justice P.N. Shinghal as the disciplinary authority was a mere irregularity which does not vitiate the proceedings and is protected by Rule 32 of the High Court Rules.

26. We are unable to accept the aforesaid contentions urged by the learned Addl. Government Advocate. In our Opinion, the schemes of the 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 & at power 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 fudge 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 of the Chief while acting, as a disciplinary authority. In that view of the matter, 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 she disciplinary proceedings 'that are befog conducted by' the Administrative Judge by nominating another Judge 'as' Disciplinary Authority and assigning the said disciplinary proceedings to him. In our opinion, an analogy can be drawn from the provision contained in Section 435 of the Cede of Criminal Procedure, 1898, whereby the revisional powers had been conferred on the Sessions Judge as well as on the District Magistrate. In that context it is laid down that the Sessions Judge and the District Magistrate were court of coordinate jurisdiction and in a case where the Sessions Judge had exercised his jurisdiction it was not competent for the District Magistrate to assume jurisdiction and pass an order contradictory to the order passed by the Session Judge Kalimuthu v. Emperor (1903) 26 Mad. 477 and Mohammed Hussain v. Mst. Nanhi A.I.R. 1930 All. 757. In our opinion in order to avoid conflict of jurisdictions and to ensure a harmonious functioning of two authorities who hive been empowered to exercise disciplinary powers against judicial officers, it must be held that in cases where the Administrative Judge has already assumed jurisdiction by initiating disciplinary proceedings against a judicial officer, it will not be competent for the Chief Justice to interfere in the progress of the said disciplinary proceedings by withdrawing the disciplinary proceedings from the Administrative Judge and assigning the same to a judge nominated by him. It may be that in a particular case, the Administrative Judge, on account of pressure of work or due to some other reasons, may request the Chief Justice to assign a disciplinary proceedings initiated by him against a judicial officer, to any other Judge and in that event, it may be open to the Chief Justice to nominate a Judge for the purpose of conducting the disciplinary proceedings initiated by the Administrative Judge, but it would not be competent for the Chief Justice to withdraw a disciplinary proceedings pending before the Administrative Judge in normal circumstances.

27. In the present case, we find that disciplinary proceedings against the appellant had been initiated by Shri Justice Narayan who was the Administrative Judge at that time, by a memorandum dated 1st September, 1969. The said disciplinary proceedings were initiated by Shri Justice Jagat Narayan in his capacity as the Administrative Judge. After Shri Justice Jagat Narayan became the Chief Justice of this Court, the said disciplinary proceedings continued to remain pending with the Administrative Judge and Shri Justice L.N. Chhangani, after the became the Administrative Judge on the appointment of Shri Jagat Narayan as Chief Justice, assumed charge of the said disciplinary proceedings. On 10th January, 1970 when Shri Justice Jagat Narayan as the Chief Justice of this Court, passed the order, nominating Shri Justice P.N. Singhlal as the disciplinary authority to proceed further with the departmental enquiry against the appellant, Shri Justice Chhangani, as the Administrative Judge, was already in seisin of the departmental enquiry against the appellant. The effect of the order dated January 10, 1970, passsd by the Chief Justice was thus to withdraw the departmental proceedings which were pending before the Administrative Judge, Shri Justice Chhangani, and to assign the same to Shri Justice P.N. Shinghal, a Judge nominated by the Chief Justice. In our opinion, this was not permissible under the terms of the 1967 Resolution. The order dated January 10, 1970, passed by the Chief Justice, nominating Hon'ble Shri Justice P.N. Shinghal as the disciplinary authority in the departmental enquiry against the appellant was therefore illegal and the proceedings taken by Shri Justice P.N. Shinghal in his capacity as the Disciplinary Authority were also illegal and void.

28. There is no merit in the contention of the Additional Government Advocate that even after he Became the Chief Justice, Shri Justice Jagat Narayan retained the jurisdiction over the departmental enquiry which had been initiated by him against the appellant in his capacity as the Administrative Judge and that it was open to Shri Justice Jagat Narayan to nominate Shri Justice P.N. Shinghal to proceed further with the said departmental inquiry. In our opinion, the departmental inquiry was initiated by Shri Justice Jagat Narayan against the appellant, in his capacity as the Administrative Judge & after Shri Justice Jagat Narayan ceased to be the Administrative Judge on his appointment as the Chief Justice of his Court, he had ceased to have jurisdiction over the said departmental inquiry and Shri Justice Chhangani who took over as the Administrative Judge after the appointment of Shri Justice Jagat Narayan as Chief Justice assumed the jurisdiction over the said departmental proceedings pending against the appellant.

29. The Addl. Government Advocate is not right, in his submission that the appellant did not raise any objection with regard to be jurisdiction of Shri Justice P.N. Shinghal to conduct of the disciplinary proceedings. We find that in his reply dated 20th September, 1970, to the show cause notice dated 9th July, 1970, the appellant has raised various objections with regard to the jurisdiction and amongst the said objections is included an objection to the proceedings of enquiry conducted by Shri Justice P.N. Shinghal. More over, it our opinion the question as to whether the Chief Justice was competent to nominate Shri justice P.N. Shinghal as the disciplinary authority to proceed further with the department alinquiry against the appellant is a question which goes to the root of the matter and the appellant is entitled to raise the tame in the writ petition.

30. We are also unable to agree with the submission of the Addl. Government Advocate that the appointment of Shri Justice P.N. Shinghal as the Disciplinary Authority to proceed further with the disciplinary proceedings against the appellant under the order dated 10th Tanuary, 1970 and the disciplinary proceedings conducted by him amounted to mere irregularity and which did not affect the validity of the order of removal in view of the provisions contained in Rule 32 of the High Court Rules. Rule 32 of the High Court Rules provides as under:

Rule 32 : (1) No irregularity in or omission to follow, the procedure laid down in this chapter, shall affect the validity of any order passed or anything done under these Rules.

(2) For the removal of doubt, it is hereby mentioned that all administrative work disposed of by the Chief Justice, the Administrative Judge or any other Judge or Judges to whom the work has been assigned by the Chief Justice for disposal shall be deemed to be disposed of by the Court.

31. In our opinion, Rule 32 cannot have any application to the present case. As laid down by the Privy Council in N.A. Subrahmaniam Iyer v. Emperor 28 A.I. 257, a distinction has to be drawn between a mere irregularity and an illegality Similarly in tie contest of Article 212(1) of the Constitution which lays down that the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure, the Supreme Court in Special Reference No. 1 of : AIR1965SC745 has observed that if the impugned procedure is illegal and unconstitutional, it would be open to be scrutinstd in a court of law though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. The same test will have to be applied for purpose of determining whether Rule 32 affords protection to the impugned orders in the present case. Since we are of the view that in cases where the Administrative Judge is in seisin of a disciplinary inquiry against a judicial officer, the Chief Justice is not competent to withdraw the disciplinary proceedings from the Administrative Judge and assign it to a Judge nominated by him the order dated 10th January, 1970, passed by the Chief Justice nominating Shri Justice P.N. Shinghal as the Disciplinary Authcrity to proceed further with the disciplinary inquiry pending the appellant was 'not a case of irregularity but want of competency. Provisions of Rule 32 of High Court Rules which are Applicable to case of irregularity only cannot, therefore, have any application to the present case.

32. We, therefore, conclude that the order dated 10th January, 1970, passed by the Chief Justice, nominating Shri Justice P.N. Shinghal as the disciplinary authority to proceed further with the disciplinary inquiry against the appellant and proceedings of the disciplinary enquiry conducted by Hon'ble Shri Justice P.N. Shinghal in pursuance of the aforesaid order dated 10th January, 1970 were illegal and void Once the order dated January 10, 1970 passed by the Chief Justice, nominating Shri Justice P.N. Shinghal as the Disciplinary Authority and the disciplinary proceedings conducted by am are held to be illegal and void then the present case stands at par with Anandilal Verma Case No II 1975 R.L.W. 34. In that case his Court after holding that the appointment of Shri Justice Bhargava as the Disciplinary Authority & the report submitted by him was illegal, set aside the order of removal of Shri Anandilal Verma from service on the view that the report made by Shri Justice Bnargava which formed the basis of further proceedings taken by the Governor, could not provide a valid foundation to pass an order of removal or dismissal by the Governor. For the same reason the order of removal of the appellant from service which is based on the findings recorded by Shri Justice P.N. Shinghal in the disciplinary proceedings conducted by him is also liable to be quashed.

33. In the result this Special Appeal is allowed. The order of the learned single Judge is set aside and the writ petition filed by he appellant is allowed and the order dated January 10, 1970, passed by the Chief Justice, suspending the appellant and the order dated 4th December, 1974, passed by the Governor, removing the appellant from service are quashed. In the circumstances of the case, the parties are directed to bear their own costs.


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