Skip to content


Kotwal (T.C.) Vs. State of Jammu and Kashmir and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in(1968)IILLJ780J& K
AppellantKotwal (T.C.)
RespondentState of Jammu and Kashmir and anr.
Cases ReferredMadan Lal Chawla v. Principal
Excerpt:
- j.n. wazir, c.j.1. this is an application under section 103 of the constitution of jammu and kashmir for a writ of certiorari to quash the show-cause notice issued by the government dated 16 august 1966 proposing to inflict punishment of removal from service from the date the petitioner was placed under suspension and all proceedings initiated by respondent 2 by framing charges on24 february 1966 against the petitioner and for a writ of mandamus directing respondent 1 not to put into effect the recommendation of respondent 2 and to reinstate the petitioner on the pest he held at the time of the suspension by withdrawing the recommendation regarding suspension. 2. the petitioner joined kashmir civil service (judicial) in the year 1945 and continued in that service up to february 1964 when.....
Judgment:

J.N. Wazir, C.J.

1. This is an application under Section 103 of the Constitution of Jammu and Kashmir for a writ of certiorari to quash the show-cause notice issued by the Government dated 16 August 1966 proposing to inflict punishment of removal from service from the date the petitioner was placed under suspension and all proceedings initiated by respondent 2 by framing charges on24 February 1966 against the petitioner and for a writ of mandamus directing respondent 1 not to put into effect the recommendation of respondent 2 and to reinstate the petitioner on the pest he held at the time of the suspension by withdrawing the recommendation regarding suspension.

2. The petitioner joined Kashmir Civil service (Judicial) in the year 1945 and continued in that service up to February 1964 when he was temporarily deputed and appointed Deputy Commissioner. District Magistrate and Custodian, Jammu, and he took ever charge of that office on 17 February 1964 and Continued to function as such up to 17 April 1964. After that he was appointed as Registrar -of the High Court. While he was working as Registrar of his Court, respondent 2 framed a charge sheet of corruption against the petitioner on 24 February 1966 and directed him to appear before it on 24 March 1966, After the charge sheet was framed against the petitioner he was placed under suspension as required under the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962.

3. Respondent 2 held inquiry and heard arguments on 31 May 1966. it submitted its report along with its recommendation to respondent 1 in the first week of August 1966. Or receipt of the report and the recommendations 1 issued show cause notice on 16 August 1966 to the petitioner which is as fellows:

Whereas allegations of corruption existed against you as Custodian, Evacuee Property, Jammu, which connected, Evacuee with having obtained pecuniary advantage for Sota Ram & Co. lessee of the evacuee building known as ' Metro Hotel; Jammu' by abuse of your official position and without regard to statitery limitations;

Whereas these allegations were reduced into specific articles of charge and a regular enquiry was held in relation thereto by the Anti-Corruption Commission constituted under the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962;

Whereas the Commission has held the allegations to be proved and the Governor after consideration of the findings recorded by the Commission has come to the provisional conclusion that punishment of removal from service with office from the date you were placed under suspension be imposed upon you;

Now, therefore, a notice is hereby given to you to show oases within a period of one month from the date of the receipt of this notice as to why the said punishment of removal from service from the date you were placed under suspension be not impaired upon upon you. A copy of the findings of the Commission excluding the recommendations in regard to punishment is enclosed;

By order of the Governor.

4. On receipt of this show-cause nation the petitioner filed the present application for quashing the proceedings initiated against him by respondent 2. An application was made by the petitioner that compliance of the show-cause notice be stayed. After hearing the petitioner it was ordered that the show-cause notice be complied with but respondent 1 should not pass final orders during the pungency of the writ petition. The writ petition came up for hearing before a single Judge of this Court on 22 December 1966 and the learned judge observed that as substantial questions and the powers of the High Court ever judicial officers were involved in the petition, so it should be placed before a larger Bench. The petition was placed for hearing before the Full Bench pf this Court on 3 January 1937.

5. Respondent 2 did not put in appearance and the petition was respondent 1 and the Advocate-General appeared on its behalf.

6. The case of the petitioner was that he was an officer of the High Court whose appointing authority was the chief Justice and any inquiry of misconduct, breach or corruption could be ordered, initiated, held and completed by the chief justice alone. The inquiry was started by the commission on receipt of a report from the custodian-general which inquiry under the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962, was without jurisdiction from its very inception.

7. It was contended that even that order to hold an inquiry by the Government against the petitioner was initially without jurisdiction. It was further contended that if the petitioner is considered to be a District Judge, his appointing authority was the Governor is consultation with the High court. The control ever the subordinate judiciary vested in the High Court and have inquired into the allegations against him and respondent 2 was not competent to do so. The petitioner assailed the findings of respondent 2 and urged that they were based on conjectures and surmises and not on legal evidence.

8. On behalf of respondent 1 It is stated in reply.

(a) That the order of suspension having been passed by the High Court and the inquiry having been held with its tacit concurrence, the petition cannot proceed without the High Court being made a party to the petition.

(b) That the contention now sought to be raised relating to the jurisdiction of the Anti-corruption Commission not having been raised either in the written statement of dtente filed by the petitioner before the Commission on 24 March 1966 or at any time thereafter although he was added by a galaxy of leading lawyers, he is precluded from raising these contentions at this stage.

(c) That since the Anti-Corruption Commission constituted under Section 5 of the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962, is by virtue of Section 9 there of in vested with and exercises the powers of the High Court for the powers of its duties, it is not amenable to the writ jurisdiction of the High Court.

(d) That no writ lies against an interim order.

No final order having been made by the competent in the case, the petition is premature and is liable to be dismissed in limine. It was stated that the petitioner was placed under suspension by order of the High Court No. 278 dated 8 March 1966 and as under Section 108 of the Constitution of Jammu and Kashmir appointments of officers and servants of the High Court are made by the Chief Justice or such other Judges or officers as the Court mar direct, the order of suspension was valid. It was admitted on behalf of respondent 1 that one of the District Judges is generally appointed as Registrar, High Court, and gets an allowance of Rs. 100 per month ever and above his pay as a District Judge, but it was stated that the petitioner was acting as Custodian, Evacuee Property. Jammu, and the allegations of corruption as contemplated by the Jammu and Kashmir Government servants' Prevention of Corruption (Commission) Act, 1962, were mad against him in that capacity and the Commission, respondent 2, was competent to enquire into his conduct as such and that the inquiry was validly held.

9. The conduct of the petitioner as Registrar of the High Court or as a District Judge was not in question but the allegations of corruption as Ceridian were the subject-matter of inquiry and action. Lastly it was contended that although the control ever the District Courts and courts subordinate thereto may be said to vest in the High Court, se far as the conduct and discipline of the District Judges or judicial officers subordinate to them are concerned, yet it is subject to the power of appointment (including dismissal and removal) of the District Judges and the order imposing the punishment of dismissal and removal can be passed by the Governor alone. The Government under the orders of the Governor is competent to initiate inquiry into the conduct of a District Judge. In the instant case according to respondent 1 the inquiry was held with the tacit concurrence of the High Court and was therefore valid.

10. One of the preliminary objections rinsed by the learned Advocate-General is that the petition cannot pressed unless the High Court is made a party to the proceedings inasmuch as the court had passed the suspension order of the petitioner. The suspension order was issued by the Registrar, High Court, on 2 march 1966 and it reads as fellows.

The Anti-Corruption being sati fled that the case of T.C. Ketwal as Custodian, Evacuee Property, Jammu, at present Registrar. Hugh Court, is severed by Ols. (a) and (c) of Sub-section (5) of Section 12 of the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962 (Act 11 of 1962), T. C. Ketwal, Registrar. High Court, is hereby placed under suspension under the previsions of the said Act.

(By order)

(Sd.) R.C. Bhat,

Registrar, High Court of

Jammu and Kashmir, Jammu.

It is true that the petitioner was placed under suspension under the orders of the Chief Justice issued by the Registrar on 8 March 1966 but the language of the order shows that it was passed under Sub-section (5) of Section 12 of the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962, which reader as under.

(5) A Government servant shall be placed under suspension after the charges are drawn against him by the Commission under Sib-sec. (4) if the Commission is satisfied that-

(a) that continuance in office of such Government servant will prejudice the trial or inquiry; or

* * *(c) the continuance in office of the Government servant will be the public interest; * * *

The Chief Justice had no opportunity to examine the materials on which the charge was based, nor had he any potion under the above prevision of the Act not to suspend the petitioner. The only thing that had to be seen at the stage was whether there were charges framed by the Commission against the petitioner under the Act and suspension automatically followed the framing of the charges under the said Act. Merely because the petitioner was suspended under Ols. (a) and (c) of Sub-section (5) of Section 12 the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act, 1962 by Chief Justice, the Court door not become a party to this petition and therefore it is not necessary to make the High Court as a party.

11. The other objection raised by the Advocate-General is that the petitioner, not having raised the question of jurisdiction before the Anti-Corruption Commission, respondent 2, is not competent to raise the some point before this Court. In supers of this contention reliance is placed on Gandhi nagar Motor Transport Society v. State of Bombay : AIR1954Bom202 in which is has been held that.

before a question of jurisdiction of a tribunal is raised on a petition under Arts. 226 and 227, objection to jurisdiction must be taken before the tribunal whose order is being challenged.

12. No doubt it is a very salutary rule that the party aggrieved must take his objection to jurisdiction at the very outset the tribunal which according to him had no Jurisdiction to hold inquiry against him but if there is lack of inherent jurisdiction in the tribunal the emission on the part of the petitioner to raise that point before the tribunal would not debar him from raising it before the High Court in a writ petition. In this view we are fortified by a ruling of the Supreme Court, Pioneer Traders v. Chief Controller of Imports and Exports, pondicherry : 1983(13)ELT1376(SC) in which at p, 745 it has been held.

Where an authority, whether judicial or quince-judicial, has in law no jurisdiction to make as order, the omission by a party to raise before the authority the relevant facts for deciding that question cannot clothes it with jurisdiction.

The preliminary objection raised by the Advocate-General is, therefore, overruled.

13. It is father urged that the Commission, respondent 2, has been given the powers of the High Court under Section 9 of the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act and therefore it has the some status as that of the High Court and no writ would lie against an order of respondent 2. This contention is devoid of force and must be rejected. Under Section 9 of the aforesaid Act the Anti-Corruption Commission has been given powers of this Court in regard to curtain matters which are enumerated in the some section but by no stretch of imagination it can be said that the Commission is another High Court in the State and therefore is not amenable to the writ jurisdiction of this Court.

14. Under Section 93 of the Constitution of Jammu and Kashmir it is provided that there shall be a High Court for the State consisting of a Chief Justice and two or more other Judges. Under the Constitution, therefore, there can be only one High Court for the State and the Anti-Corruption Commission cannot assume the status equal to that of the High Court. The some view has been taken in another Full Bench ruling of this Court in Writ Petition No. 130 of 1966, dated 31 October 1966 M.S. Farooqui v. Chairman and Member of Anti Corruption Commission A.I.R. 1967 J. and K. 37. This objection is also overruled.

15. Lastly, it has been urged that no final orders had been passed by the Government and therefore, the writ petition filed by the petitioner is premature and not competent. The case of the petitioner is that, he being the Registrar of the High Court, the Commission lacked inherent jurisdiction to inquire into the allegations of misconduct or corruption against him. If the question of inherent lack of jurisdiction had not been raised by the petitioner in this petition, he was not competent to challenge the report or the recommendations made by the Anti-Corruption Commission till final orders were passed by the Government on the basis of these recommendations. But this is not the position in this case.

16. On behalf of the petitioner it is urged that the commission, respondent 2, had no jurisdiction to inquire any allegations against him, he being the Registrar of the High Court, and its findings and report are clearly without jurisdiction and therefore should be quashed. In our view, in such cases where the tribunal lacks jurisdiction to proceed against an officer, it is not necessary for him to wait till final orders are passed in the proceedings. He can challenge jurisdiction of the tribunal in a writ petition. This preliminary objection is of no avail to the respondent and must be rejected.

17. The main question that falls for determination is to find the authority competent to exercise disciplinary jurisdiction over members of the subordinate judiciary of the State presiding in the District courts and the courts subordinate thereto. The relevant sections of Jammu and Kashmir Constitution on the point are Sub-section (1) of Section 104 which reads as under.

The High Court shall have superintendence and courts of the time being subject to its appellate or revisional jurisdiction and all Courts shall be subordinate to the High Courts.

and from Sections 109 to 112. Section 109 of the Constitution under the heading 'Subordinate Comets' deals with the appointment, pasting and promotion of District Judges in the State and the authority for such appointment, posting and promotion is expressly said there to be the Governor of the State in consultation with the High Court of the Stare.

18. Section 110 deals with the appointment to the judicial service of the state of persons other than such District Judges. That appointing authority is also the Governor or the State in accordance with the rules made by him in that behalf after consulting the State Public Service Commission and the High court. Section ill provides as under.

The control over District Courts and Course subordinate thereto including the posting and promotion of, and the grant of leave to persons to the judicial service of the State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this section shall be construed as taking a way from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed such law.

19. In Section 112 the expressions 'District Judge' and 'Judicial crevice' are defined. From these previsions of the Constitution it is clear that the control ever District courts and Courts subordinate thereto vests in the High Court. The learned Advocate-General appearing for the respondent argued that the word 'control' must be given restricted moaning. According to him, the word 'Control' means only control of the day-to-day working of the courts inasmuch as the word 'District Courts and Courts subordinate thereto 'are used in Section111 and not District Judges and Judges subordinate to them. It is submitted that if incumbents were mentioned. 'control' may have meant disciplinary control but not when the when' District Courts and Courts subordinate thereto are used.

20. It is further contended that the conditions of service are outside the word 'control' as laid down is Section 111, because the conditions of service are to be determined by the Governor in case of District Judges and in the case of Judges subordinate to the District Judge by the rules made by the Governor in the behalf after consulting the state Public Service Commission and the High Court the some argument was advanced before the Supreme Court in state of West Bungle and Anr. V. Nripender Nath Bagohi 1966-I.L.L.J.279.

We do not accept this construction. The word 'control' is not defined in the Constitution at all. In Part. XIV which deals with services under the Union and the States the words 'disciplinary control' or 'disciplinary jurisdiction have not at all been used. It is not to be thought that disciplinary jurisdiction of services is not contemplated. In the context the word 'control must, in our judgment, include disciplinary jurisdiction. Indeed the word may be said to be used as a term of are because the Civil Services (Classification, Control and Appeal) Rules used the word 'control' and the only rules which can legitimately come under the word 'central' are the Disciplinary Rules. 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 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 prier state or the law, the evil sought to be removed and the process by which the law was evolved. The word 'control' as we have seen, was used for the first time in the constitution and it is accompanied by the word 'vest' which is a string word. It shows that the High Court is made sale custodian of the control ever the judiciary. 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 (which corresponds to Section 104 of the Constitution of Jammu and Kashmir) 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 (which corresponded to Section 111 of the State Constitution) must have a different content. It includes something in addition to mere superintendence. It is control over the conduct and discipline of the Judges. This conclusion is farther strengthened by two other indications pointing clearly in the some direction. The first is that the order of the High Court is made subject to an appeal if so provided in the law regulate 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 series and the word 'deal' also points to disciplinary and not mere administrative jurisdiction.

21. Articles 233 (which corresponds to Section 109 of the State Constitution) and 235 (which corresponds to Section 111 of the State Constitutes) Make motion of the distinct powers. The first is power of appointment of persons, their postings and promotions and other is power of control. In the case of the District Judges appointments of persons to be and posting and permeation are to be made by the governor but the control ever the District Judge is of the High Court. We are not impressed by the argument that the word used in (District Court) because the rest of the article clearly indicates that the word 'court' is used compendiously to donate not only the court proper but also the presiding Judge. The latter part of Article 226 talks of the man who holds the office. In the case of the judicial service subordinate to the District Judge, the appointment has to be made by the Governor in accordance with the rules to be framed after consultation with the State Public Service Commission and the High Court but the power of posting, promotion and grant of leave and the control of the courts are vested in the High Court. What is vested includes disciplinary jurisdiction. Control is useless if it is not accompanied by disciplinary powers. It is not to be expected that the High Court would run to the Government or to the Governor in every case of indiscipline however small and which may not even require the punishment of dismissal of removal. These articles go to show that by vesting 'control' in the High Court, the independence of the subordinate judiciary was in view. This was partly achieved in the Government of India Act, 1935, but it was given offset to fully by the drafters of the present Constitution. This construction is also in accord with the Directive Principles in Article 50 (corresponding to Section 18 of the Constitution of Jammu and Kashmir) of the Constitution which reads.

The State shall take steps to separate the Judiciary from the executive in the public services of the state.

The above ruling of the Supreme Court clearly lays down that the word 'control' used in Section 111 means not only general superintendence of the working of the courts but includes disciplinary control of the presiding Judges, i.e, the District Judges subordinate to them. The some view has been reiterated by the Supreme Court in the case of state of Assam V. Ranga Muhammad and Ors. 1968 -I. L.L.J.282.

22. The learned Advocate-General relying on Section 126 of the Constitution of Jammu and Kashmir argued that the Governor being the dismissing authority is alone competent to conduit disciplinary inquiry or set up the disciplinary tribunal and according to him disciplinary jurisdiction of the High Court is completely ousted from the control which is vested in the Court under Section 111 of the Constitution. This argument, in our opinion is not sound. Section 126 is as fellows.

126. dismissal, reduction or removal of person employed in civil capacities under the State-(1) No person who is a member of a civil service of the State or holds a civil post under the State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank inept after an inquiry in which he has been infer med of the of the charges against him and given a reasonable opportunity of being heard in respect of these charges and where it is prepared after such inquiry to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry.

Provided that the Sub-section shall not apply-

(a) In where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a original charge, or.

(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is stifled that for some reason to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry or.

(c) where the Governor is satisfied that in the inters that in the interest of the security of the State it is not expedient.

(3) If in respect of any such person as aforesaid a question arises whether it is reasonable to hold such inquiry as is referred to in Sub-see. (2) the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.

It is no doubt true that under Section 126 read with Sections 109, 110 and 111 of the Constitution appointing authority in respect of a judicial officer being the Governor the dismissing authority must also be the some Governor but the mere fact that the power of dismissal. Removal or reduction in rank vast in the Governor does not divest the High Court of its control which is vested in it under Section 111 of the Constitution. Even the special powers enjoyed by the Governor under provisos (b) and (c) of Sub-section (2) of Section 126 would not alter the position as for as disciplinary control of the High Court over the District Judges of Subordinate Judges is concerned.

23. These different sections of the Constitution mentioned above can be reconciled by holding that the High Court is entitled to conduct disciplinary inquiry and send its report in regard to that inquiry to the Governor to make an appropriate order of dismissal, removal or reduction in rank as the power of dismissal, removal, or reduction rank is vested in the Governor alone. Moreover, there is another circumstance which lands support to this view which is that in case the High Court after inquiry into the conduct of a District Judge or a Judge subordinate to him comes to the conclusion that penalty of dismissal, removal or reduction in rank is not called for, it may not send its report to Governor but take disciplinary action itself which clearly shows that only in special circumstances the High Court is required under the Constitution to submit its report and recommendations to the Governor for taking action by him by ordering dismissal, removal or reduction in rank of a judicial officer. In 1988-I L.L.J.270 it has been held.

The fact that Governor appoints District Judges and can alone dismiss or remove them does not impinge upon the control of the High Court. It only moans that the High Court cannot appoint or dismiss or remove District Judges. In the same way the High Court cannot use the special jurisdiction conferred by the two provisos. It cannot decide that the is not reasonably practicable to give a District Judge an opportunity of showing cause or that in the interests of the security of the State it is not expedient to give such an opportunity. This the Governor alone can decide. That certain powers are to be exercised by the Governor and not by the High Court does not necessarily take away other powers from the High Court.

The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment (including dismissal and removal), posting and promotion of district Judges. The High Court can, in the exercise of the control vested in it, hold enquires, hold enquiries impose impure punishment other than dismissal or removal subject, however, to the conditions of removal subject, however, to the conditions of service, and a right of appeal if granted thereby and to the giving of an opportunity of showing cause as required by Clause (2) of Section 126 unless such opportunity it dispensed with by the Governor acting under the provisos (b) and (c) to that clause. In Mohammad Ghouse v. State of Andhra A.P.65. Sri Subba Rao. Chief Justice of India, who was thon the Chief Justice of Andhra Pradesh High Court. Laid down.

The High Court has control and superintendence over subordinate courts. This power necessarily implies that the High Court can tale disciplinary action against Subordinate Judge in appropriate cases. The control will certainly will certainly be ineffective if the authority exercising the control cannot take disciplinary action against a person under its control. To put it in other words, a superior authority cannot control the action of a subordinate if he cannot take disciplinary action against him.

This case wont up before the Supreme Court and the judgment of the Andhra Pradesh High Court was affirmed vide : [1957]1SCR414 by the Supreme Court. It is not disputed that at the time when the inquiry was started Kotwal was the Registrar of the High Court. Under Section 108 of the Constitution of Jammu and Kashmir appointments of officers and servants of the High Court are mad by the Chief Justice of the High Court or such other Judge or officer of the Court as he may direct. Under Section 16 of the General clauses Act the authority having power to make the appointment has also the power to suspend or dismiss any person appointed by it in exercise of that power. The argument is that the Chief Justice had the power of appointing the Registrar and it was with his tacit concurrence that inquiry was initiated against the petitioner who was the Registrar of the High Court.

24. It is true that the Chief Justice being the authority to make appointment of the Registrar has the power to suspend or dismiss him. It the instant case Kotwal is a District judge and was selected as Registry of High Court for a certain term. His substantive appointment may well be more relevant thus his temporary appointment as Registrar or by the Court if he is a District Judge. Neither the Chief Justice nor the Court had given concurrence in initiating inquiry against the petitioner. As has been already pointed out, the Anti-Corruption Commission was satisfied that the case of the petitioner as custodian, Evacuee Property, Jammu, is covered by Clauses (a) and (c) of Sub-section. (5) of Section 12 of the Jammu and Kashmir Government servante' Prevention of Corruption (commission) Act, 1962.

25. There was no option under the provisions of the Act of the Chief Justice not to poses the petitioner under suspension. The suspension was ordered under the mandatory previsions of the said Act without examining what allegation were against the petitioner and therefore it could not be said that there was any tacit concurrence of the Chief Justice or the court in ordering suspension of the petitioner and initiating inquiry against him it is further agreed that the lapses or the petitioner as Custodian were being inquired into and as Custodian he was not amenable to the disciplinary control of the High Court and respondent 2 was competent to go into the charges framed against him as Custodian. It is true that the petitioner was temporarily holding the office of the Custodian when he is alleged to have committed certain irregularities which amounted to corruption within the meaning of the Act.

26. The question is, in the circumstances of the instant case, who was the authority competent to conduct the inquiry against him. The petitioner is a District Judge and ho was temporarily officiating as Custodian. Any lapse on his part daring the period he was holding to office of the Custodian will be inquired into under the provisions of the Constitution applicable to the case of a District Judge. The substantive appointment of the petitioner at the material time of the inquiry may well be more relevant this his officiating appointment as custodian when the alleged misconduct is attributed to him. The inquiry was initiated and conducted against a District Judge and not against Custodian.

27. It may be that the petitioner, District Judge, had committed some irregularities while be as Custodian but who was competent authority to hold inquiry would be determined by the substantive post which the petitioner was holding at the time of the inquiry and the inquiry against him had to be conducted in accordant with the provisions of the Constitution. In this view we are supported by an authority of the Allahabad High Court in Madan Lal Chawla v. Principal, Hareourt Butler Technological Institute : AIR1962All166 in which it in held.

If a department was at one time under one officer but at some time later it was transferred to another head, then at that stage it is the head of the department to which the employee has been transferred alone who would be entitled to take action and the department from which he has gore away will have nothing to do with him any longer in future.

28. The petitioner temporarily officiated as Custodian and then he was transferred from that department to his parent Judicial Department san district Judge. It was therefore the High Court which was competent to take disciplinary action against him and not the Government or the head of the department under whom he was temporarily officiating as Custodian, Evacuee Property.

29. On behalf of the petitioner it is argued that the findings arrived at by respondent 2 are contrary to the weight of the evidence and are based upon conjectures and surmises and therefore they should be quashed. We do not propose to enter into the merits of each individual charge and the findings arrived at by the Anti-Corruption Commission on each charge. It is not the function of this Court under Section 163 of the Constitution to act as a Court of appeal on the facts and merits of a ease although it is only fair to record that strong criticisms have been made by the counsel for the petitioner characterizing the findings arrived at by respondent 2 as travesty of justice such as findings based upon conjectures and erroneous inferences drawn from contain documents which do not admit of such inference. Be that as it may, we refrain from expressing any elision on this branch of the petitioner's argument.

30. We are clear in our mind that under the Constitution this Court and this Court alone has undoubted and exclusive jurisdiction over the subordinate judiciary of the State subject only to the power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of district Judges. The High court can hold inquiries and impose punishments other than dismissal or removal or reduction in rank subject, however, to the conditions of service and a right of appeal if granted by the conditions of service and to the giving of an opportunity of showing on use as required by Clause (2) of Section 126 of the Constitution of Jammu and Kashmir unless such opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause.

31. In the instant case, the High Court alone could have held inquiry and not respondent 2, To hold otherwise is to reverse the policy which has been laid down in the Constitution of separation of judiciary from the executive and to make the former completely independent of the latter. In the instant case the High Court did not conduct the disciplinary proceeding, nor was it consulted by respondent 1 before initiating inquiry against the petitioner by respondent 2. all that was done was to get orders of suspension of the petitioner under the provisions of the Jammu and Kashmir Government Servants' Prevention of Corruption (Commission) Act. 1962 from the Chief Justice without mentioning the charges and the material on which they were based and finally submitting the results of the inquiry not to this Court but to the Government for action against the petitioner.

32. The High Court was neither asked to constitute the tribunal or conduit the departmental proceedings nor to take disciplinary action against the petitioner. We are, therefore, of the opinion that the proceedings and the report submitted by respondent 2 to respondent 1 are wholly without jurisdiction and unconstitutional and, therefore, void and merit to be set aside.

33. In the result the writ petition is allowed and a writ of certiorari issued quashing and setting aside the entire proceedings including the report submitted by respondent 2 to respondent 1 and the show-cause notice issued to the petitioner by respondent 1. the order of suspension is vacated. In the circumstances, we leave the parties to bear their own costs in this Court.

Syed Murtaza Fazl Ali, J.

34. I agree.

J.N. Bhat, J.

35. I agree


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //