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Anandilal Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Writ Petition No. 64 of 1969
Judge
Reported in1974WLN969
AppellantAnandilal
RespondentState of Rajasthan and anr.
DispositionPetition allowed
Cases ReferredParameswari Prasad Gupta v. The Union of India
Excerpt:
rajasthan high court ordinance, 1949 - section 44 & constitution of india--article 235--disciplinary control of subordinate judiciary vests in high court and not in chief justice alone.;after the constitution came into force the disciplinary control of the subordinate judiciary vests entirely in the high court and not in any other authority.;sub-section (3) of section 44 gives the administrative control of the high court and not of subordinate judiciary to the chief justice, which clearly means that the working of the high court shall be regulated by the chief justice. this provision can not be interpreted to mean that the disciplinary control of the subordinate judiciary which by virtue of article 235 of the constitution vests in the high court, will be exercised by chief justice.....v.p. tyagi, j.1. petitioner anandilal, by his writ petition, has challenged the validity of the order of his removal from service passed by the governor vide document no 11 dated december 30, 1968 with the prayer that the impu- gned order be quashpd and he be reinstated he has also rrayed that the order passed by the chief justice dated july 6, 1963, suspending him may also be quashed.2. the facts giving rise to this petition are in a nutshell as follows : a complaint was received by hon'ble the chief justice against the petitioner, who was posted as munsif magistrate, first class, nawa, that the petitioner had grossly misused his magisterial powers by issuing the warrant against one ganpatia, who was responsible for getting the petitioner's father prosecuted before the panchayat. at that.....
Judgment:

V.P. Tyagi, J.

1. Petitioner Anandilal, by his writ petition, has challenged the validity of the order of his removal from service passed by the Governor vide document No 11 dated December 30, 1968 with the prayer that the impu- gned order be quashpd and he be reinstated He has also rrayed that the order passed by the Chief Justice dated July 6, 1963, suspending him may also be quashed.

2. The facts giving rise to this petition are in a nutshell as follows : A complaint was received by Hon'ble the Chief Justice against the petitioner, who was posted as Munsif Magistrate, First Class, Nawa, that the petitioner had grossly misused his magisterial powers by issuing the warrant against one Ganpatia, who was responsible for getting the petitioner's father prosecuted before the Panchayat. At that time no case against Ganpa'ia was pending in the petitioner's court and, therefore, the allegation was that Ganpatia was illegally kept under detention for a week. The complaint was sent for inquiry to the District judge. Merta, who after making preliminary inquiry reported the matter to the High Court that the allegations made against the petitioner were not without foundation. The Chief Justice then issued an order of suspension on July 6, 1963, under Rules 13 and 15 of the Rajasthan Civil services (Classification, Control and Appeal) Rules, 1958 (hereinafter called the 'Rules of 195S') and sent the matter for irquiry to Hon'ble Mr. Justice C.B. Bhargava under Rule 16(4) of these Rules Two charges were framed by Justice Bhargava and the petitioner was called upon to submit his written statement of defence to the said charges. After making inquiry Mr. Justice Bhargava found the accused guilty of charge No. 1, i.e, misusing of his judicial power and proposed a penalty of removal or dismissal from service. The report of Mr. Justice Bhargava was forwarded by Hon'ble the Chief Justice to the Governor for imposing the penalty on the petitioner as proposed by Mr. Justice Bhargava. A show cause notice under Article 311(2) of the Constitution was issued to the petitioner by the Secretary to ihe Government proposing to inflict the penalty of removal or dismissal as suggested by Mr. Justice Bhargava and directed the petitioner to submit his reply to the Government. The petitioner challenged the validity of the show cause notice by preferring a writ petition No. 1153 of 1964 in this Court mainly on the ground that Mr. Justice Bhargava was not competent to conduct an inquiry as disciplinary authority. His main contention was that the disciplinary authority in a case of a judicial officer was the High Court, which according to Article 216 of the Constitution means the Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint, and, therefore, according to the petitioner a Single Judge of the High Court even though he may be Chief Justice was not competent to initiate any disciplinary action against the member of the Judicial Service. He further contended that his case was never referred to the Full Court and, therefore, any action taken by the Governor issuing a show cause notice under Article 311(2) of the Constitution on the basis of a report made by Mr. Justice Bhargava, was illegal.

3. That writ petition filed by Anandilal was contested by the State Government and the stand taken by the respondent was that under Rule 15 of the Rules of 1958, framed under Article 309 of the Constitution, the Administrative Judge or a Judge nominated by the Chief Justice of the Rajasthan High Court, was a disciplinary authority for imposing any of the penalty prescribed under the said Rules except those of removal and dismissal from ser- vice and since Mr. Justice Bhargava was nominated under Rule 15 by the Chief Justice of the Rajasthan High Court, he was competent to frame charge under Rule 16 (2) of the Rules of 1958 and to proeeed with the disciplinary inquiry against the petitioner.

4. This stand of the State was not accepted by the Bench consisting of Jagat Narain and Chhangani, JJ, and it was held that the enquiry report submitted by Mr. Justice Bhargava could not form the basis for issuing a show cause notice under Article 311(2) of the Constitution as Mr. Justice Bhargava was not appointed by the Full Court and, therefore, the impugned show cause notice was quashed by the Court. Other questions which were raised by the petitioner regarding his suspension and the competence to proceed further with the enquiry, were, however, not decided by the learned Judges in view of the fact that the enquiry papers shall be placed before the Full Court before action is taken against the petitioner.

5. It is common ground between the parties that thereafter the Full Court met on December 11, 1965, and discussed the inquiry report, made by Hon'ble Justice Bhargava in the light of the observations made by the court. The Full Court accepted the inquiry report of Mr. Justice Bhargava and recommended to the Governor to impose the penalty of removal or dismissal of the petitioner for the charge that stood proved against him.

6. A show cause notice was, therefore, again issued by the Government under Article 311(2) of the Constitution. The petitioner raised various objections including the competence of Justice Bhargava to initiate the disciplinary proceedings after framing charge and also contended that the Full Court did not allow the personal hearing to the petitioner in spite of the fact that a specific request was made by the petitioner for the same. After a careful consideration of the report of Justice Bhargava and that of the Public Service Commission and the objections raised by the petitioner, the Governor came to the conclusion that the petitioner was guilty of the charge of misusing magisterial powers and that in the circumstances the penalty of removal will meet the ends of justice and, therefore, the impugned order dated December 30, 1968, was passed by the Governor.

7. This order has been challenged by the petitioner inter alia on the ground that the Governor could not have inflicted any penalty on the basis of the report of Mr. Justice Bhargava, who was not competent to initiate the disciplinary inquiry against the petitioner by framing charges and then making inquiry therein. According to the petitioner Mr. Justice Bhargava was not a disciplinary authority and, therefore, he could neither frame charges nor could be conduct the inquiry and recommend to the Government about the petitioner's removal from service and subsequent acceptance of that report by the Full Court does not give any validity and sure the defects of that report which was from its very inception illegal. The petitioner has also challenged the impugned order on the basis that it suffers from a fundamental defect of violating the principle of natural justice inasmuch as the Full Court, which considered the report of Mr. Justice Bhargava, did not allow the petitioner a chance of being heard personally, and that do disciplinary action could be taken against the petitioner for the act performed by him in a judicial capacity and since the warrant was issued by the petitioner for the arrest of Ganpatia in the discharge of his judicial function, his act was not subject to any disciplinary control of the High Court unless it was set aside by a competent judicial authority. It was also averred that the Full Court was not competent to validate the enquiry made by an incompetent authority by adopting his recommendations nor could the Governor accept such recommendations without going through the entire record, which was not submitted to him.

8. In a joint reply filed by the State of Rajasthan and the High Court it is averred that appointment of Mr. Justice Bhargava to take disciplinary action against Judicial Officer was made by Hon'ble the Chief Justice Shri J.S. Ranawat on November, 28, 1962, in the exercise of his power vested in him under & notification No. F.3(1) Apptts/A/60/Gioup III(I) dated September 16, 1960, issued by the Governor under Rule 14 of the Rules of 1958 and this inquiry was entrusted to Mr. Justice Bhargava by Hon'ble the Chief Justice Shri D.S. Dave on July 6, 1963, who passed the following order:

Shri Anandilal is suspended with immediate effect. He will receive substances grant at the rate of one-fourth of his pay during the suspension period Hon'ble Mr Justice C.B. Bhargava who has already been authsiised by ihe then Chief Justice vide order No. 5/8 O dated 23.1.63, will deal with the matter under the Rajasthan Civil Services (Classification, Control and Appeal) Rules.

The said order of the Chief Justice, according to the reply filed by the respondents, had the effect of entrusting the inquiry to Mr. Justice Bhargava in the capacity of a disciplinary authority under Rule 15 of the Rules of 1958 and, therefore, the proceedings taken by Mr. Justice Bhargava could not be challenged by the petitioner as proceedings taken by an incompetent person. It is further averred that the report of Mr. Justice Bhargava, after the judgment in writ petition No. 1163 of 1964 (Anandilal Verma v. State of Rajasthan) pronounced on Dacember 7, 1965, came up for the consideration of the Full Court on December 11, 1965, and the Full Court, which is a disciplinary authority, under Article 235 of the Constitution, adopted the report of Mr. Justice Bhargava and the recommendations made by him were accepted by the Full Court and it is on the decision of the Full Court that the Governor, after issuing show cause notice under Article 311 of the Constitution, removed the petitioner from service and, therefore, under these circumstances it is not open for the petitioner to challenge the order of removal on the ground that it was recommended by an authority which was not competent to take the disciplinary proceedings against the petitioner. It was also averred that all the objections taken by the petitioner were considered by the Full Court and, therefore, there was no necessity for giving personal hearing to the petitioner. In this view of the matter according to the respondents, the proceedings do not suffer from any defect of violating the principles of natural justice. Other minor objections raised by the petitioner that ail the inquiry papers were not placed before the Governor when the impugned order was passed by him is, however, not admitted by the respondents.

9. From these (sic) contentions the important questions that emerge for our determination are (1) whether the order dated 23rd January, 1963 passed by the Chief Justice nominating Mr. Justice Bhargava as a disciplinary authority for the purpose of Rule 15 of the Rules of 1958 under the notification issued by the Governor on September 16, 1960 was valid, and as such the disciplinary proceedings against the petitioner who was a member of the Judicial Service could be initiated by Mr. Justice Bhargava by framing charges under Rule 16 and proceed to make enquiry in to the allegations made against him; (2) whether the report submitted by Mr. Justice Bhargava after enquiry could be used by the Full court to make its recommendation to the Governor for imposing a penalty of removal of the petitioner from service; (3) whether the enquiry made by Mr. Justice Bhargava was lawful; (4) whether the Full Court by considering the report of Mr. Justice Bhargava in its meeting of 11th December, 1965 ratified the appointment of Mr. Justice Bhargava as disciplinary authority and all the proceedings taken by him; (5) whether disciplinary action could be taken against the petitioner for the acts done by him in the discharge of his judicial duties without getting the order set aside on judicial side; and (6) whether the Chief Justice alone was competent to suspend the petitioner.

10. The argument advanced by Mr. M.B.L. Bbargava, appearing on behalf of the petitioner, is that under Article 235 of the Constitution no authority except the High Court, which according to him, means the Full Court, was competent to take the disciplinary actun against the member of the Rajas- than Judicial Service, because the entire control on the subordinate judicary vests in the High Court and, therefore, Mr. Justice Bhargava though appointed by the Chief Justice, under the notification issued by the Governor under Rule 14 of the Rules of 1958, could neither assume the role of a disciplinary authority nor was the competent to frame charges under Rule 16 of the Rules of 1958 and proceed with the enquiry It is, therefore, urged that the inquiry made by Mr. Justice Bhargava stands vitiated as having been made by an authority incompetent to do be. In support of this argument, reliance has been placed by Mr Bhargava on the authority of the Supreme Court in the State of West Bengal and Anr. v. Nripendra Nath Bagchi : (1968)ILLJ270SC wherein their Lordships have observed that the word 'control' as used in Article 235 of the Constitution includes 'disciplinary jurisdiction.' In this connection the following observations of the Supreme Court have been read out to us to impress upon us that none but the High Court alone (meaning thereby the Full Court; could take the disciplinary action against the members of the Judiciary:

Further as we have already shown, the history which lies behind the enactment of these articles indicates that 'control' was vested in the High Court to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and- unless it included disciplinary control as well the very object would be frustrated. This aid to construction is admissible because to find out the meaning of a law, recourse may legitimately be had to the prior state of the law, the evil sought to be removed and the process by which the law was The word 'control', as we have seen, was used for the first time in the Constitution and it, if accompanied by the word 'vest' which is a strong word. It shows that the High Court is made the sole custodian of the control over the judicialy. (Underlining is ours). Control, therefore, is not merely the power to arrange the day to day working of the court but contemplates disciplinary jurisdiction over the presiding Judge. Article 227 gives to the High Court superintendence over these courts and enables the High Court to call for returns etc. The word 'control' in Article 235 must have a different content. It includes some- thing in addition to mere superintendence. It is control over the con- duct and discipline of the Judges. This conclusion is further strengthened by two other indications pointing clearly in the same directions. The first is that the order of the High Court is made subject to an appeal if so provided in the law regulating the conditions of service and this necessarily indicates an order passed in disciplinary jurisdiction. Secondly, the words are that the High Court, shall 'deal' with the judge in accordance with his rules of service and the word 'deal' also points to disciplinary and not mere administrative jurisdiction.

11. It is not disputed that the disciplinary control of the subordinate judiciary vests in the High Court, but the contention of Mr. Mathur is that the word 'High Court' as used in Article 234 must be read subject to the provisions of Section 44 of the Rajastban High Court Ordinance, 1949, which lays down that the administrative control of the High Court shall vest in the Chief Justice who may exercise it in such manner and after such consultation with the other Judges as he may think fit or may delegate such of his functions, as he deems fit to any other Judges of the High Court. Placing his reliance on the provisions of Section 44 of the Ordinance read with the High Court Rules framed by the Court, it is urged by Mr. Mathur that the Chief Justice is competent to initiate the disciplinary proceedings himself or to dele- gate his power to any Judge of the Court who will be equally competent to exercise such control over the subordinate judiciary and as such word 'High Court' as used in Article 235 according to Mr. Mathur be given a meaning which may lend support to the provisions of Section 44 of the Rajasthan High Court Ordinance. He also contended that the Rules of 1958 were framed by the Governor in the exercise of his powers under Article 309 of the Constitution and the notification issued there under has the same force of law as the Rules themselves and, therefore, if any action taken by the Chief Justice under the notification issued under the said Rules by appointing Mr. Justice Bhargava as disciplinary authority, it cannot be said that such appointment was, in any manner, violative of Article 235, because ultimately the appointment of Mr. Justice Bhargava was made by the Chief Justice in whom the administrative control vests by virtue of Section 44 of the Ordinance.

12. This question whether Mr. Justice Bhargava was competent to initiate the disciplinary proceedings against the petitioner by framing charge, came up for the consideration of the Bench in writ petition No. 1153 of 1964. The Advocate General in that petition while placing reliance on the provisions of Section 44 of the High Court Ordinance 1949 advanced an argument that the administrative judge or a judge nominated by the Chief justice under Rule 15 of the Rules of 1958 was as good a disciplinary authority as the Chief Justice himself under Section 44 of the High Court Ordinance and as such the Judge nominated by the Chief Justice could exercise powers to initiate disciplinary action at d impose all the penalties as are mentioned in Rule 14 except those of removal or dismissal. It was also contended that Article 235 does not in any way make the appointment of the Administrative Judge or a nominee of the Chief justice as disciplinary authority illegal.

13. This question was discussed at length by the learned Judges in Anandilal Verma v. State of Rajasthan (2) and after relying on various judgments of different High Courts and that of the Supreme Court in the State of West Bengal and Anr. v. Nripendra Nath Bagchi : (1968)ILLJ270SC they observed:

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

14. From these observations it is clear that the learned Judges were not prepared to accept this proposition that the disciplinary control of the subordinate judiciary vested exclusively in the Chief Justice to the exclusion of the Judges of the High Court and they rejected the argument of the Advocate General by saving that even it it is assumed that Chief Justice had some such control it cannot be held good after the Indian Constitution come into force. This question whether the report made by Mr Justice Bhargava was valid or not because the appointment of Mr. Justice Bhargava was not made by Full Court, was, however, left open by the Bench by making the following observation:

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

15. The argument of the learned Advocate General that the administrative control of the subordinate judiciary by virtue of Section 44 of the High Court Ordinance of 1949 vests in the Chief Justice was definitely repelled by the learned Judges. We are in respectful agreement with the conclution of the learned Judges that after the Constitution came into force the disciplinary control of the subordinate judiciary vests eptirely in the High Court and not in any other authority Section 44 of the High Court Ordinance has hardly any relevance to this question because Sub-section (3) of Section 44 gives the administrative control of the High Court and not of subordinate judiciary to Chief Justice, which clearly means that the working of the High Court shall be regulated by Chief Justice. This provision can n t be interpreted to mean that the disciplinary control of the subordinate judiciary which be virtue of Article 235 of the Constitution vests in the High Court, will be exercised by Chief Justice alone, The Constitution of the High Court has been given in Article 216, which provides that High Court shall consist of Chief Justice & such other Judges as the President from time to time deem it necessary to appoint. On the authority of this Court in Prem Nath v. The State of Rajasthan 1965 RLW 144 the word 'High Court', as used in Article 236, shall be interpreted to mean the Full Court and not the Chief Justice as contended by Mr Mathur.

16. This Court while relying on the judgments in Mohammad Ilyas Alvi v. State of Maharashtra : (1965)IILLJ487Bom , Nripendra Nath Bagchi v. Chief Secry., Govt. of West Bengal : (1961)IILLJ312Cal and Bachitter Singh v. State of Punjab : AIR1963SC395 held in the case of Anandilal Verma (2) that in all cases when a penalty of removal or of dismissal or any other penalty proposed under Rule 14of the Rules of 1958, is to be imposed on the members of the subordinate judiciary, the inquiry shall have to be initiated by the High Court, because the control on the members of the judicial service vests in the High Court, and that control is a complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and, therefore, the competent authority to initiate disciplinary proceedings is the High Court which means 'he Full Court. The Governor no doubt by issuing a notification under Rule 14 of the Rules of 1958 delegated the power to the Administrative Judge or a Judge nominated by the Chief Justice of the High Court to function as a disciplinary authority, but that delegation by the Governor is not valid as the Governor can no create an authority parallel to the one already created by the Constitution under Article 236. The appointment of the Administrative Judge or a Judge nominated by the Chief Justice as a disciplinary authority by the Governor by issuing a notification under the Rules of 1958, cannot be held to be valid We feel fortified in our view when we look to the resolution of the Full Court adopted on October 30, 1971, wherein the Full Court itself has expressed on the point thus : 'Rule 2(c) defining ''Disciplinary Authority' and Rule 15(1) appointing the Disciplinary Authority are ultra vires Article 235 of the Constitution because the control over the subordinate judiciary according to the provisions of that Article vests in the High Court, which control includes Disciplinary jurisdiction'. In this view of the matter the Full Court, relying on the Supreme Court Judgment in State of West Bengal and Anr. v. Nripendra Nath Bagchi : (1968)ILLJ270SC , mentioned that the High Court and not a Judge appointed by the Governor under Rule 15(1) of the Rules 1958 or a Judge nominated by the Chief Justice under the notification issued by the Governor;n exercise of the powers under Rule 15(1) of the Rules of 1958, was the disciplinary authority. The Full Court, in this connection further observed, while adopting the resolution, that as the High Court alone has power to conduct an enquiry against a Judicial Officer, such an enquiry cannot be conducted by a dele safe of the Governor, and it should be conducted by the High Court or a delegate of the High Court. It was also observed that as the control over judicial officer vests in the High Court, the power of suspension can only be exercised by the High Court or its delegate. In the words of the Full Court:

'High Court' under Article 235 means the Chief Justice and all other Judges of the High Court.

which makes it clear that if any disciplinary action was to be taken before the said resolution was adopted, then it could be initiated by the Full Court. However, as it was not convenient for the Full Court to get in all matters, the Full Court considered it proper to delegate certain powers either to the Chief Justice, the Administrative Judge or to the nominee of the Chief Justice and, therefore, the Resolution of the Full Court regarding disciplinary action against judicial officer was adopted in 1971 in the following language:

Under Article 235 of the Constitution of India, the control over District Courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the Judicial Service of the State and holding any post inferior to the post of District Judge vests in High Court. This Court is therefore vested with the power of taking disciplinary action against the presiding officers of the District Court and courts subordinate thereto, subject to the other provisions of Article 236 and the provisions of Article 311 of the Constitution. The Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, which at present make provision for such matters have been made under the proviso to Article 309 of the Constitution and cannot therefore apply to the presiding officers of the District Courts and the Courts subordinate thereto in so far as they are inconsistent with the provisions of Article 225 of the Constitution.

The control under Article 235 is vested in the Full Court, but as it is not convenient for Full Court to act in all matters the following delegation of powers is made by it:3. (1) The Administrative Judge or a Judge nominated by the Chief Justice shall have the power to take disciplinary action and to impose on 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.

17. By adopting this resolution, the previous resolution of the Full Court dated May 6, 1967, which made the procedure prescribed by the Rules of 1958 applicable mutatis mutandis for imposing major or minor penalties on the members of the subordinate judiciary, was superseded and the power of the Full Court so far as the disciplinary action to impose penalties on the judicial officer enumerated in Rule 14 of the Rules 1968 except those of removal and dismissal from service are concerned, was delegated to the Administrative Judge or a Judge nominated by the Chief Justice. It, therefore, follows that before the said resolution was adopted by the Full Court, a Single Judge of the High Court including the Administrative Judge or a Judge nominated by the Chief Justice could not assume the role of the (sic) authority under Rule 15 of the Rules of 1968 and as such could not initiate the enquiry by framing the charge against the delinquent subordinate judicial officer under Rule 16 of the Rules of 1958. The Full Court alone, in our opinion, was competent to take the disciplinary action under Article 235 of the Constitution against the petitioner in 1963 when these proceedings were started.

18. The position as accepted by this Court in Anandilal Verma v. State of Rajasthan (2) is that a disciplinary action against the member of the judicial service could be taken only by the Full Court and not by the Chief Justice or his nominee acting as a diciplinary authority under Rule 15(1) of the Rules of 1958. This position also finds support from the Full Court resolution adopted by it while applying the Rules of 1958 mutatis mutandis to the enquiries against the judicial officer wherein it was made clear that the Rules apply to the extent to which they are consistent with the provision of Article 235 of the Constitution which clearly means that the disciplinary authority appointed under Rule 25(1) of the Rules of 1958 will not be competent to initiate or carry on the disciplinary proceedings against the subordinate judicial officer. Under Rule 13 of the said Rules charge can be framed only by disciplinary authority. In this case the chartes were framed by Mr Justice Bhargava in the capacity of a disciplinary authority and conducted further proceedings on the basis of these charges. Since the appointment of Mr Justice Bhargava as a disciplinary authority was not made by the Full Court Mr. justice Bhargava did not acquire competence to initiate the enquiry by framing charges under Rule 16 of the said Rules and, therefore, the enquiry conducted by Mr. Justice Bhargava cannot be said to be a valid inquiry and any action taken by the Governor on the basis of a report made by Mr. Justice Bhargava after the enquiry would vitiate the ultimate order of the Governor removing the petitioner from service. It is not disputed that Mr. Justice Bhargava was nominated by the Chief Justice under the powers delegated to him by the Governor under Rule 15(1) of the Rules of 1958 by issuing a notification on 16.9.1960 and as such Mr Justice Bhargava while acting as a disciplinary authority cannot be said to be a delegate of the High Court (Full Court) under Article 235 of the Constitution. Incur opinion the Chief Justice alone was not competent under Article 235 to act as a disciplinary authority for taking ac ion against the member of the Rajasthan Judicial Service and, therefore, he alone was not competent to appoint Mr Justice Bhargava as a disciplinary authority by issuing standing order on January 23, 1963, vide document No. 2 on the record. The initial appointment of Mr. Justice Bhargava was not in accordance with Article 235 and, therefore, the proceedings taken by Mr. Justice Bhargava stand vitiated.

19. Mr. Mathur then argued in the alternative that if the appointment of Mr. Justice bhargava was held to be improper and the enquiry made by him was unauthorised, the proceedings can not be said to be vitiated as the defect was cured when the report of Mr. Justice Bhargava was adopted by the Full Court in its meeting dated December 11, 1965, and the recommendation made by Mr. Justice Bhargava proposing the removal or dismissal of the petitioner, was adopted by the Full Court. Thereafter, according to Mr. Mathur, proceedings taken by Mr. Justice Bhargava shall be deemed to be the proceedings taken by him under the authority of the Full Court, as it was a clear case of the ratification of the Act of Mr. Justice Bhargava by the Full Court which was competent authority under Article 235 of the Constitution to take disciplinary action against the petitioner. Mr. M.B.L Bhargava, appearing on behalf of the petitioner, on the other hand contended that the subsequent adoption of the report of Mr Justice Bhargava, who was incompetent to initiate the disciplinary enquiry by framing charges against a member of the judiciary servce. would not cure the illegality in initiating the enquiry. He also urged that Mr. Justice Bhargava, while taking proceedings against the petitioner, did not act on behalf of the Full Court and, therefore, the Full Court was not competent to ratify the action taken by Mr. Justice Bhargava. According to leraned Counsel for the petitioner the doctrine of ratification can be pressed into service only when there is a relationship of principal and agent between the High Court (Full Court) and Mr. Justice Bhargava, while taking diciplinary action against the petitioner. In support of this submission reliance was placed by Mr. Brurgava on The State of Andhra Pradesh through the Chief Secretary v. Mohammed Mazharuddin Ahmed (1969) II An WR 79, Rallapalli Suryanarayana v. State of Andhra Pradesh, by the Secretary Food and Agriculture (1967) II An WR 253, Gangadhar Shivalingappa Nagmoti v. The State of Mysore AIR 1970 My 309, Baldeo Singh v. The Secretary to Government, Punjab Rehabilitation Department and Ors. (1969) Vol III SLR 689, G.S. Rajagopala Ayyar v. State of Madras : AIR1955Mad182 and Shardul Singh v. State of Madhya Pradesh : (1968)IILLJ274MP .

20. In State of A.P. v. Mohd. Mazharuddin Ahmed (1969) II An WR 79 it was not disputed that the control of the subordinate judiciary vested in the Administrative Bench of the High Conrt. under the Farman of the Nizam. The Chief Justice of the High Court on a complaint made against the petitioner, who was the member of the subordinate judiciary, appointed Manoher Prasad as the Enquiry Officer. As a result of the enquiry it was held that the charges levelled against the petitioner were proved and, therefore, the learned enquiry judge recommended to the Full Administrative Bench of the High Court that the delinquent officer (petitioner) be dismissed from service. The Full Administrative Bench of the High Court after considering the enquiry report of Mr. Justice Mannhar Prasad, recommended to the Government for taking the action against the petitioner as proposed by Manohar Prasad, J., The Government agreed with the finding of the Enquiry Judge and dismissed the petitioner. The petitioner preferred an appeal against the order of dismissal before the Rajpramukh. The penalty of dismissal was, however, converted by the Rajpramukh to one of compulsory retirement with proportionate pension. The suit was then filed by the delinquent officer contending inter alia that the appointment of the Enquiry Judge by the Chief Justice was without jurisdiction and, therefore, the whole proceedings were null and void. According to the plaintiff under the Hyderabad High Court Act it was only the Administrative Bench that had power to take disciplinary action against Munsif-Magistrates and the Chief Justice had no power to institute an enquiry and appoint an enquiry Officer, and consequently all the subsequent proceedings passed on the report of the enquiry Judge were null and void. The defendant contended that under Clause 35 of Section 14 of the Hyderabad High Court Act, the Chief Justice has residuary power to take disciplinarry action against the Munsif Magistrates and, therefore, the proceedings taken against the respondent were all valid.

21. The Question was thoroughly scrutinized by the High Court of Andhra Pradesh and after taking into consideration various authorites cited before that court it was held that under the Constitution it was the High Court that could direct an enquiry against a subordinate judicial officer and appoint one of the judges as the enquiry officer, but according to the law in force in Hyderabad on the relevant date, it was the Administrative Bench the could hold the enquiry, or direct it to be held, by one of the judges. Since the appointment of the enquiry Judge was admittedly not made by the Administrative Bench, the enquiry was held to be wholly unauthorised, and the record which formed the basis for the imposition of the penalty was with- out jurisdiction.

22. This argument that ultimately the Administrative Bench made a final recommendation to the Government after scrutinising the findings of Manoher Prahad, J, and, therefore, it had the effect of ratifying the proceedings taken by Shri Mvnoher Prasad, J. who was appointed as enquiry judge by the Chief Justice, did not find favour with the learned Judges.

23. In Rallapalli Suryanarayan v. State of Andhra Pradesh (1967) II An WR 253 the disciplinary proceedings were taken against the Agricultural Demonstrator by the District Agricultural Officer, who framed the charges and conducted the enquiry and found the petitioner guilty of several charges framed by him. He forwarded the minutes of enquiry to the Director of Agriculture and the Director adopted the enquiry officer's report and issued a show cause notice to the Agricultural Demonstrator. After receiving the petitioner's explanation, the Director of Agriculture passed the order terminating petitioner' services and the said order of the Director was eventually conferred by the Government. That order of dismissal was challenged by the petitioner in the Andhra Pradesh High Court by means of writ petition. Krishna Rao, J. speaking for the Court said:

The punishing authority is admittedly the Director of Agriculture. As such he is the only person entitled to initiate the proceedings. It is common ground that there is no statutory rule empowering the Director of Agriculture to del gate the function of making of enquire. In fact there has been no delegation in the present case by the Director of Agriculture authorising the District Agricultural Officer to conduct the enquiry. This fact is enough to come to the conclusion that the enquiry conducted by the District Agricultural Officer is wholly unauthorised and that the enquiry proceedings are vitiated.

The learned Judges while coming to the said conclusion followed the decision in Shardul Singh v. State of M.P. : (1968)IILLJ274MP .

24. In G.S. Rajagopala Ayyar v. State of Madras : AIR1955Mad182 an enquiry was instituted against a Magistrate in consultation with the Board of Revenue. The Magistrate was found guilty of a charge of corruption. The report of the Disciplinary Tribunal was accepted by the Government and the delinquent officer was dismissed. The contention raised was that the Desiplinary Tribunal had no jurisdiction to enquire into the complaint against the petitioner, as he was the member of judicial service, Ayyangar, J, while deciding the said contention, observed:

In my judgment the non observance of the rules which have statutory force under Article 313 of the Constitution and the conduct of the enquiry by a Tribunal or authority not competent to do so necessarily leads to the conclusion that the preliminary conditions subject to which alone the notice to show cause under Article 311(2) could be issued have not been satisfied and it follows that the resultant order is in violation of Artie's 311(2) of the Constitution.

25. In Gangadhar Shivalingappa Nagmoti v. The State of Mysore AIR 1970 My 309 the Governor on the recommendation made by the Chief Justice appointed Hegde J to make enquiry into the allegations made against the member of the subordinary judiciary. Mr Justice Hegde, the specially empowered authority, found the delinquent judicial officer guilty of the charge framed against him and recommended to the Governor that the petitioner be reduced to the tank of Civil Judge, Junior Division (Munsif). The Governor, after considering the report of the special empowered authority, found the charge proved against the petitioner and proposed the penalty of retiring the petitioner compulsonly and after giving a show cause notice under Article 311(2) imposed the penalty of compulsory retirement. This was challenged by the petitioner in the High Court of Mysore mainly on the ground that the Governor was nor competent to initiate disciplinary proceedings against the judicial officer. According to the petitioner it was High Court which was competent to institute enquiry against him. It was argued by the respondent that in the circumstances of the case when the appointment of Mr. Justice Hegde was made by the Governor on the recommendation of the Chief justice to proceed with the enquiry with the charges made against the petitioner it should be taken that the enquiry was made by the High Court and, there- fore, the enquiry report, on the basis of which Governor imposed the penalty, cannot be said to be suffering from any infirmity, and the penalty imposed by the Governor was quite in consonance with the provision of the Constitution. Chandra Shekhar, J. relying on the judgment of Supreme Court in the State of West Bengal and Anr. v. Nripendra Nath Bagchi's case : (1968)ILLJ270SC decided the point by holding:

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

The learned Judge in this connection further observed:

Thus it is clear that the Hon'ble Chief Justice has not been empowered to appoint on behalf of the High Court the Specially Empowered Authority or the Enquiry Officer. The question of appointment specially Empowered Authority or Enquiry officer to hold an enquiry against the petitioner, was not considered by the Full Court of the High Court. It follows that the direction of the Hon'ble Chief Justice on 19-10-1903 that the Governor might be moved to appoint Mr. Justice K.S. Hegde as the Specially Empowered Authority, cannot be regarded as a recommendation or proposal made by the High Court to the Governor in regard to such appointment. When there was no recommendation or proposal of the High Court in this behalf, the appointment of Mr. Justice K.S. Hegde by the Governor cannot be regarded as being, in substance, an appointment made by the High Court, nor can the enquiry made by him be regarded as being, in substance, one made by the High Court.

26. These authorities fully support the stand taken by the petitioner that the proceedings taken by Mr. Justice Bhargava in the circumstances of this case cannot be said to have been taken by the High Court and his report, therefore, could not be used by the Governor to impose the penalty of removal as Mr. Justice Bhargava was not competent to initiate enquiry against the petitioner. Mr. Mathur, however, contends that these judgments are distinguishable as the facts of the present case are different. In the instant case it is urged that the action taken by Mr Justice Bhargava was subsequently ratified by the Full Court on December 11,1965, which had the effect of conferring with retrospective effect a valid authority on Mr. justice Bhargava to initiate disciplinary proceedings' against the petitioner Attempt has been made to support to this submission by relying on the Supreme Court authority in Parameswari Prasad Gupta v. The Union of India (1974) Vo. II SLJ 456.

27. In that case Parameswari Prasad Gupta was initially appointed as a Secretary of the respondent company, but later on, he was promoted to the post of the General Manager. Mr. Gupta went on leave and when he wanted to extend that leave, he was telegraphically informed by the Chair- men of the Board of Directors on December 17, 1953 that his services were terminated by the Company and that he should stop attencing the office. The termination of service was challenged by the appellant in a suit inter alia on the ground that the resolution of the Board of Directors terminating the plaintiff's services was invalid as Mr. Khaitan, one of the Directors of the Company. was not served with a notice to attend the meeting in which the decision was taken by the Board and as the Chairman of the Board was in- competent to terminate his services the order was illegal. The Board in its subsequent meeting in which all the Directors were present, however ratified the act of the Chairman. The question that arose before the Supreme Court was whether the subsequent adoption of a valid resolution by a meeting of the Board of Directors attended by all the members of the Board, would validate the order of the Chairman of the Board, which was issued by him on the strength of an invalid resolution. The learned Judges held that this fact could not be disputed that a notice to all the Directors of a meeting of the Board was initially essential for the validity of any resolution passed at the meeting and that, as admitted, no notices was given to Mr. Khaitan, one of the Directors of the Company, the resolution passed terminating the services of the appellant was invalid. But in the opinion of the learned Judgas even if it were assumed that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because he purported to act in pursuance of the invalid resolution at the Board and, therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorised, was done on behalf of the Company The learned Judges of the Supreme Court first held that ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953 Mr. Mathur strenuously urged that on the stringth of this decision the adoption of the report of Mr. Justice Bhargava by the Full Court on December 11, 1965, shall have the effect of ratifying the recommendations made by Mr. Justice Bhargava & would validate the proceedings taken by him, as ultimately the report which was the outcome of the proceedings taken by Mr. Justice Bhargava, was finally adopted by the Full Court.

28. The resolution of he Full Court has not been placed before us, as the Registrar has claimed privilege to produce this document in the Court. From the tenor of the reply filed by the respondents and the arguments advanced by Mr. Mathur, we gather that the question about the validity of the appointment of Mr. Justice Bhargava as a disciplinary authority under Rule 15 of the Rules of 1958 (vide document No. 2) was not considered by the Full Court in its meeting dated December 11, 1985. Even today Mr Mathur is not prepared to urge that Mr. Justice Bhargava's appointment by the Chief Justice was ratified or validated by the Full Court. The stand taken by Mr. Mathur during the course of argument is very clear and it is that Mr. Justice Bhargava was appointed as a disciplinary authority by the Chief Justice under the powers delegated to him by the Governor under the provisions of the Rules of 1958 In view of this stand it is difficult for Mr. Mathur to urge with any justification that Mr. Justice Bnargava discharged his duties as a disciplinary authority on behalf of the Full Court under Article 235 of the Constitution. The doctrine of ratification clearly envisages, that a person whose act is going to be ratified by another authority had acted on behalf of the ratifying authority. Ratification in law means a subsequent authorisation by one for whom certain art has been performed by another person who lacked authority, either express or implied, to act on his behalf. By doing so the person whom or on whose behalf the act has been done accepts that act to be done for him under his authority This subsequent authorisation, in legal parlance, is known as ratification, and it dates back to the time when the act was actually performed by the unauthorised person. The doctrine of ratification, therefore, clearly envisages the relationship of principal and agent between the persons who did some act and for whom it was done. In para 756 (at page 452) of Halsbur,'s Laws of England, 4th Edition, Vol. 1, the dectrine of ratification has been dealt with and there it has been mentioned that:

Where the act has been done by a person not assuming to act on his own behalf, but for another, though without his precedent authority or knowledge, and is subsequently ratified by that other person, the relation of principal arid agent is constituted retrospectively, and the principal is bound by the act whether it is to his advantage or detriment, and whether liability therefore is founded in con- tract or in tort, to the same extent and with all the same consequences as if it bad been done by his previous authority.

29. There is, however, one important exception to this doctrine of ratification and it is that an act which is void at its very inception, cannot be ratified by the principal From this it can safely be. inferred that ratification is possible only when the act has been performed on behalf of one who subsequently ratifies that act. In the instant case, it is difficult for Mr. Mathur to urge that Mr. Justice Bhargava while initiated the disciplinary proceedings against the petitioner, for and on behalf of the Full Court. The plea becomes untenable when we find that Mr. justice Biargava acted under the orders of the Chief Justice issued by him in the capacity of a delegated authority of the Governor under Rule 15(1) of the Rules of 1958. In these circumstances, Mr Justice Bhargava, cannot be said to have acted as a disciplinary authority for and on behalf of the Full Court. His act was quite independent of the control of the Full Court. The necessity of producing the report of Mr. Justice Bhargava before the Full Court was felt when this Court in Prem Nath's case 1965 RLW 14 and in Anandilal's case (2) emphatically held that it was the Full Court alone that was competent to deal with such matters. Under these circumstances, the question of ratifying the action of Mr. Justice Bhargava by the Full Court does not arise.

30. It has be noted that the appointment of Mr. Justice Bhargava as a disciplinary authority wa3 clearly in violation of the provisions of Article 225 of the Constitution and, therefore, from its very inception the action taken by him was unauthorised. The disciplinary proceedings taken by Mr. Justice Bhargava, therefore, were invalid and void and as such they were not capable of being ratified by the Full Court even if the assume that the Full Court was otherwise competent to ratify it. The judgment of the Supreme Court in Parameswari Prasad Gupta v. The Union of India 1974 Vol. II SLJ 486 relied upon by Mr Mathur can hardiy lend any support to the stand taken by the respondents. That judgment is clearly distinguishable inasmuch again that case the order of the termination of the services of the appellant in fact passed in an irregular meeting of the Board of Directors and the decision was simply communicated to the appellant by the Chairman on behalf of the Board and as such the capacity of the Chairman, while communicating that order, was that of the agent of the Board and the Board was, therefore competent to ratify the termination by subsequently adopting a valid resolution. On the strength of this authority it is difficult for us to held that the consideration of the report of Mr. Justice Bhargava by the Full Court in its meeting of December 11, 1965, and the adoption of the recommendation made therein had the effect of ratifying the act of Mr. Justice Bhargava and validating the proceedings taken by him which from their very inception were illegal and unauthorised. The doctrine of ratification, in our opinion, cannot be attracted to the circumstances of this case.

31. From the foregoing discussion it is clear that under the provisions of the Constitution it was the High Court meaning thereby the Full Court that could direct any enquiry against a subordinate judicial officer. It is also clear that in the year 1963 when the enquiry was instituted against the petitioner the Full Court had not delegated its powers to the Chief Justice to appoint an enquiry officer or a disciplinary proceedings against the delinquent member of the subordinate judiciary and, therefore, the appointment of Mr. Justice Bhargava made by the Chief Justice by virtue of an authority delegated by the Chief Justice by virtue of an authority delegated by the Governor under Rule 15(1) of the Rules of 1958, was positively in violation of the pro- visions of Article 235 of the Constitution and did not confer any such power on Mr. Justice Bhargava, which could authorise him to frame charges against the petitioner under Rule 16(2) and initiate enquiry against the petitioner Since the appointment of Mr. Justice Bhargava was addmittedly not by the Full Court, we are constrained to hold that the enquiry was wholly unauthorised and that the report made by Mr. Justice Bhargava, 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 Mr. Justice Bhargava, while conducting the enquiry against the petitioner, did not act on behalf of the Full Court and, therefore, the authority which he did not possess at the time when the charges were framed and the enquiry was made, could not be conferred on him by the Full Court with retrospective effect by subsequently adopting the recommendations made by him in his report.

32. From the foregoing discussion it is clear that in the year 1983 when the disciplinary action was taken against the petitioner it was the Full Court alone that was entitled to initiate such proceedings against a member of the subordinate judiciary. The appointment of Mr. Justice Bhargava as a disciplinary authority under Rule 15 of the Rules of 1958, cannot be said to have been made by the Chief Justice as a delegate of the Full Court and as such Mr. Justice Bhargava could not lawrully assume the role of a disciplinary authority to initiate enquiry against the petitioner. The proceedings taken by Mr. Justice Bhargava were, therefore, without jurisdiction and were illegal. The consideration of the report of Mr. Justice Bhargava by the Full Court also could not lend validity to the procedings taken by him, because all the proceedings taken by Bhargava, J., were invalid from their very inception. In fact Mr. Justice Bhargava in this case acted as a delegate of the Governor as his appointment was made by the Chief Justice under the notification issued by the Governor under Rule 14 of the Rules of 1953 and, as such, be was not competent to act as a disciplinary authority to initiate enquiry against the petitioner. The Full Court alone was then competent to take disciplinary action against the member of the Rajasthan Judicial Service, because till then the Full Court had not delegated its powers under Article 235 of the Constitution to the Chief justice to appoint any Judge of the Court to act as a disciplinary authority under Rule 15 of the Rules of 1958, as was done in 1971 when the power was delegated to the Chief Justice to appoint the disciplinary authority to impose any of the penalties mentioned in Rule 14 of the said Rules except the penalty of removal or dismissal. From this it emerges out 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 and as such the proceedings taken by Mr. Justice Bhargava were ultra vires Article 235 of the Constitution.

33. The petitioner has also challenged the order of suspension issued by the Chef Justice on the ground that he was not competent to pass such order. The act of suspending a judicial officer is undoubtedly a part of the disciplinary action taken against him. The order, therefore, could be passed by the disciplinay authority which, under Article 235 of the Constitution, was the High Court (the Full Court) to suspend the member of the Rajasthan Judicial Service. The power was delegated by the Full Court to the Chief Justice in the year 1971. Therefore, in the year 1963 no authority except the Full Court was competant to suspend the petitioner. In this view of the matter, the order of suspension passed by the C.J. on July 6, 1963, was without authority and, therefore, void.

34. Since this petition can be disposed of by deciding the question of the competence of Mr. Justice Bhargava to initiate disciplinary enquiry against the petitioner and the petitioner can be given effective relief by quashing the impugned order on the basis of the invalidity of the proceedings taken by Bhargava J., we do not propose to deal with the other objections raised by the petitioner to impugned the order of removal. All other objections are, there- fore, left open as their decision is not necessary to dispose of this petition.

35. For the reasons mentioned above, the writ petition is allowed and we hereby quash the impugned order passed by the Governor on December 30, 1968, removing the petitioner from service. We also set aside the order of the Chief Justice dated July 6, 1963, suspending the petitioner.

36. In the circumstances of the case, we leave the parties to bear their own costs.


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