Delhi High Court
Kashi Nath Roy vs State Of Bihar Thr Joint Secretary ... on 11 March, 2011
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Review Petition No.528/2010 in WP(C)No.5779/2002
% Date of Decision: 11.03.2011
KASHI NATH ROY .... PETITIONER
Through Mr.Brajkishore Mishra and Mr.Ujjwal
K.Jha, Advocates
VERSUS
STATE OF BIHAR THR. JOINT SECRETARY & ORS. ....RESPONDENTS
Through Mr.Abhishek Kumar and Mr.Sidharth
Shankar Ray, Advocates for R-1.
Mr.P.H.Parekh, Sr.Advocate with
Mr.Ajay Kumar Jha, Mr.Vishal Prasad
and Ms.Pallavi Sharma, Advocates for
R 2 & 3.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be
allowed to see the judgment?
2. To be referred to the reporter or not?
3. Whether the judgment should be reported in
the Digest?
MOOL CHAND GARG, J.
*
CM Nos. 21717/2010 and 21718/2010
Delay in filing and refilling is condoned.
Applications are allowed and disposed of.
Review Petition No.528/2010 in WP(C)No.5779/2002
1. Vide judgment dated 06.05.2010 we have dismissed the writ
petition filed by the petitioner, which was originally filed before the High
Court of Judicature at Patna under Article 226/227 of the Constitution
of India but which was transferred to this Court under the orders of
Hon‟ble Supreme Court dated 08.04.2002.
2. The said writ petition was filed by the petitioner against the
decision dated 28-29.06.1996 of the Standing Committee of the Patna
High Court recommending „removal‟ of the petitioner from the services
of the Bihar State Superior Judicial service with immediate effect, as
also against notification No.11851 dated 02.11.1996 issued by the State
of Bihar after accepting the recommendations of the Standing
Committee issued under Rule 3(vii) of the Patna High Court Rules 1916
in accordance with the provisions contained under Article 235 of the
Constitution of India.
3. The Standing Committee of the Patna High Court, having found
the petitioner guilty of various charges for which a full-fledged
departmental enquiry was conducted and after the issuance of show
cause notice to the petitioner and after taking note of his submissions,
took a decision to recommend his removal from service with immediate
effect on 28-29.06.1996 and thereafter, the Registrar General
communicated this decision to the State Government vide letter dated
02.07.1996 for necessary approval of the Governor of the State. It is
not in dispute that on that day i.e. on the day when the decision was
taken to remove the petitioner from service, the petitioner was in
service.
4. The said recommendation of the Standing Committee was then
referred to the Governor of State of Bihar who had been pleased to
accept those recommendations and issued notification No. 11851 dated
02.11.1996. We have dismissed the writ petition filed against the
aforesaid order of the Standings Committee and the notification
No.11851 dated 02.11.1996 vide impugned order dated 06.06.2010.
The said order was challenged by the petitioner before the Hon‟ble
Supreme Court, where the following order has been passed:-
"Counsel appearing for the petitioner seeks permission
to withdraw this petition due to the fact that one of the
issues which was raised before the High Court relating
to the alleged cessation of the relationship of masters
and servants between the employer and employee even
prior to passing of the impugned order of punishment
was not dealt with and decided by the High Court and
therefore, to obtain a decision on the same a review
application is being filed. Review Application on the
said issue could be filed before the High Court as it
does not appear from the order passed by the High
Court that the same was considered and dealt with. If
at a later stage the petitioner is to approach this
Court, all issues as may be available to him in
accordance with law could be raised.
Prayer to withdraw this special leave petition is
allowed with liberty as prayed for and with the
observations made herein."
5. On the strength of this order, the present petition is filed by the
petitioner even though in addition to the aforesaid ground, the
petitioner has also urged other grounds but in view of our detailed
consideration of the submissions made by the petitioner, we find no
reason to interfere or consider the review petition filed by the petitioner
except on the ground "of alleged cessation of relationship of master and
servant between the employer and the employee even prior to passing of
the impugned order of punishment" for which a liberty has been
granted by the Hon‟ble Supreme Court to the petitioner in the aforesaid
order.
6. According to the petitioner, the order of removal of the petitioner
having been passed after the superannuation of the petitioner is
superfluous and of no effect. The petitioner has relied upon the
following judgments of the Hon‟ble Supreme Court:-
(i) High Court of Punjab & Haryana Vs. Amrik Singh, 1995
Supp(1) SCC 321;
(ii)C.L.Verma Vs. State of Madhya Pradesh & Anr., 1989
Supp(2) SCC 437; and,
(iii) Registrar (Admn.), High Court of Orissa, Cuttack vs.
Sisir Kanta Satapathy (Dead) By LRs and Anr., (1999) 7
SCC 725.
7. According to the petitioner, after attaining the age of 58 years, the
master servant relationship between the State and the petitioner ceased
to exist and therefore, no order of removal could have been passed
against the petitioner after that. It is also submitted that
recommendation for removal of the petitioner made prior to his
retirement would not make any difference as the Hon‟ble High Court is
only a recommending authority and the final order of dismissal/removal
of a judicial officer has to be passed by the Governor. Unless the final
order of dismissal/removal is passed, the recommendation of the
Hon‟ble High Court would not come into effect. The order dated
2.11.1996 is, in any event, not retrospective and comes into effect on
the date of passing of the order. On the said date, the petitioner was no
longer in service and therefore, the order of removal could not have
been passed against him.
8. According to the petitioner, in the case of Amrik Singh (supra) it
has been held that the employer is left with no right to take any action
except the action as contemplated under Rule 9 of the CCS Pension
Rules once the employee is superannuated.
9. The aforesaid submissions made on behalf of the petitioner are
hotly contested by the respondent Nos. 2 and 3, who also filed their
written submissions. It is their case that the departmental proceedings
in this case had started 22.09.1994 and were concluded on 18.04.1996.
In this period the petitioner was in service. Out of the charges leveled
against the petitioner, the Enquiry Officer found the charges No. I, II,
IV(a), (f), (g), (h), (m),(n) and IV proved against the petitioner and found
him guilty of gross negligence amounting to misconduct. The finding of
the Enquiry Report was accepted by the Standing Committee in its
meeting held on 20.04.1996 which also resolved that a copy of the
enquiry report be supplied to the petitioner with a direction to show
cause within one month from the date of receipt of notice as to why the
punishment of dismissal from service should not be imposed on him. It
was also resolved to put the petitioner under suspension with
immediate effect. A copy of Enquiry Report was sent to the petitioner
who was asked to show cause as to why the punishment of dismissal
from service should not be imposed upon him. The petitioner filed a
detailed reply to the show cause notice and supplementary show cause
notice dated 22.04.1996 and replied to all the findings of the Enquiry
Officer on merits point-wise vide his reply dated 20.05.1996. He also
replied on quantum of punishment and in fact his submission on
quantum of punishment was accepted since his punishment was
reduced from dismissal to removal. The Standing Committee vide its
meeting held on 28th and 29th June, 1996 in the Chambers of the
Hon‟ble Chief Justice, considered to show cause and supplementary
show cause submitted by the petitioner and took the following
decision:-
Agenda Decision
2. To consider the show cause Having considered the show cause
submitted by Shri Kashi Nath Roy, and supplementary show cause
District and Sessions Judge submitted by Shri Kashi Nath Roy,
(Under Suspension) (XIX 23-94) District and Sessions Judge
(Under Suspension) in response to
the earlier decision of the Standing
Committee.
It is resolved that Shri Kashi Nath
Roy, District and Sessions Judge,
be and is hereby removed from
service with immediate effect.
Necessary recommendations in
this connection be sent to the
State Government forthwith.
Sd/- D.P.Wadhwa, C.J.
Sd/- Dr.J.N.Dubey, J.
Sd/- B.N.Aggarwal, J.
Sd/- Nagendra Rai, J.
Sd/- S.N.Jha, J.
Sd- I.P. Singh, J.
Sd/- A.N.Chaturvedi, J.
10. It is thereafter, the Registrar General communicated the aforesaid
decision to the State Government vide its letter dated 2.7.1996. The
State Government accepted the recommendations to remove the
petitioner from service with immediate effect. The petitioner who was
under suspension stood removed from service in terms of the
notification dated 02.11.1996 which only reiterates the words used in
the decision taken by the Standing Committee i.e. "Removal from
service with immediate effect".
11. It is submitted on behalf of the respondents that all these events
had occurred when the petitioner was in service and prior to his
superannuation on 30.09.1996. The departmental proceedings against
the petitioner were continuing even before his alleged superannuation
inasmuch as memo of charge was drawn against him in the year 1994,
it thus became effective form the date of recommendation by the
Hon‟ble High Court. The Hon‟ble Full Bench of Patna High Court had
held in the case of Shambhu Saran Vs. State of Bihar, 2000(1)PLJR 665
that such proceedings would be deemed to have been continued. It was
held that if a proceeding has been started during the service period then
the same can be continued under Rule 43(b) of the Bihar Pension Rules
even after superannuation without any formal order.
12. It is also submitted that a departmental enquiry was initiated and
concluded when the petitioner was in service. The entire actions
leading to his removal from service took place when he was in service.
It is clear from the proceedings of the Standing Committee held on 28th
and 29th June, 1996 that the petitioner had been removed from service
with immediate effect. The recommendations of Patna High Court are
binding on the State Government and the consequential order passed in
this regard on 02.11.1996 is just a formal order. The recommendations
of the High court cannot be nullified by taking an over technical and
narrow view of the matter and the order of removal cannot be said to be
non est or superfluous in view of Article 235 of the Constitution of
India. All steps which were required to be taken by the High Court
regarding removal of petitioner were already taken by the High Court.
High Court retains the power of disciplinary control over the
subordinate judiciary including the power to initiate disciplinary
proceedings, suspend them pending enquiries and impose punishment
on them. High Court alone is entitled to remove from service but the
formal order to give effect to such a decision is passed by the State
Governor on the recommendation of the High Court.
13. It is submitted that it has been categorically held by the Hon‟ble
Supreme Court that the recommendations of the Standing Committee of
the High Court are legal and binding upon the State Government/
Governor. The Standing Committee had recommended removal of the
petitioner. The recommendations had gone to the Governor. After
recommendations were accepted by the Governor, punishment became
effective in accordance with Article 235 of the Constitution. The
Notification dated 02.11.96 complies with this provision.
14. It is submitted that master and servant relationship does not
come to an end on 30.09.1996 when petitioner superannuated and
continued even after that. Reliance is place on Rule 43(b) of the Bihar
Pension Rules, 1950:-
"The State Government further reserve to themselves the
right of withholding or withdrawing a pension or any part
of it, whether permanently or for a specific period, and
the right of ordering the recovery from a pension of the
whole or part of any pecuniary loss caused to
Government if the pensioner is found in departmental or
judicial proceeding to have been guilty of grave
misconduct; or to have caused pecuniary loss to
Government by misconduct or negligence, during his
service including service rendered on re-employment after
retirement:
Provided that-
(a) Such departmental proceedings, if not instituted while
the Government servant was on duty either before
retirement or during re-employment;
(i) shall not be instituted save with the sanction of the
State Government;
(ii) shall be in respect of an event which took place
not more than four years before the institution of
such proceedings; and
(iii) shall be conducted by such authority and at such
place or places as the State Government may direct and
in accordance with the procedure applicable to
proceedings on which an order of dismissal from service
may be made;
(b) Judicial proceedings, if not instituted while the
Government servant was on duty either before retirement
or during re-employment, shall have been instituted in
accordance with sub-clause(ii) of clause (a); and
(c) The Bihar Public Service Commission, shall be
consulted before final orders are passed."
(vii)It is submitted that Rule 101 of Bihar Pension Rules,
1950 stipulates forfeiture of past service, if a Government
Employee is removed from service. Rule 101 (a) provides
as under:
"Resignation from public service or dismissal or removal
from it for misconduct, insolvency, inefficiency not due to
age or failure to pass a prescribed examination entails for
forfeiture of past service"
15. Rule 46 provides as under:
"No pension may be granted to a Government Servant
dismissed or removed, for misconduct, insolvency or
inefficiency, but to Government Servants so dismissed or
removed compassionate allowances may be granted when
they are deserving of special consideration, provided that
the allowance granted to any Government servant shall
not exceed two-thirds of the pension which would have
been admissible to him if he had retired on medical
certificate."
16. It is pertinent to mention that the notification issued by the
Governor on the basis of the recommendations of the High Court is only
a mere formality and the notification so issued would be effective from
the date when the resolution of removal of service was passed by the
High Court since the decision of High Court was to remove the
petitioner with immediate effect. In the alternative it is submitted that
this Court may kindly read into the notification "with immediate effect"
i.e. the date on which High Court recommended removal of the
petitioner.
17. From a bare perusal of the aforesaid Rules, it is apparent that
relationship of master and servant doesn‟t cease even after retirement of
the petitioner who was a senior judicial officer and High Court is at
liberty to initiate departmental proceedings against him up to four years
of his retirement. So, the contention that the relationship of master
and servant had ceased is not tenable.
18. It has been submitted that that the judgment in the case of Amrik
Singh (supra) is not applicable to the facts of the present case as rules
were different and does not support the submission of the petitioner
which is clear from para 3 of the said judgment. In that case the
employee was working as a Superintendent in the High Court and had
retired on superannuation on 31.08.1980 after attaining the age of 56
years. Thereafter he was re-employed for 2 years and was permitted to
retire on expiry of re-employment period. During his re-employment he
was suspended and charge sheeted. Thereafter enquiry was completed
and he was dismissed from service. The High Court passed the
following order:
"For reasons stated above in CWP No. 5629 of 1984 is
allowed. The initiation of the disciplinary proceedings
and imposition of penalty of dismissal from service
against the petitioner are declared void. The orders of
dismissal from service dated 07.06.1983 passed by the
disciplinary authority and of the appellate authority dated
24.08.1984, which are under challenge in CWP Nos. 5630
and 5631 of 1984 are quashed. However, we leave it open
to the disciplinary authority, which in this case is the
Chief Justice of this Court, to the appropriate action
under Rule 9 of the Pension Rules, if he so desires."
19. Hon‟ble Supreme Court in para 3 relied on the judgment in the
case of D.V. Kapoor Vs.Union of India, (1990) 4 SCC 314, which held that
considering Rule 9 of the Central Rules, the initiation of the disciplinary
proceedings must be deemed to be under Pension Rule in the same
manner as Government Servant continued in service. It was held that
the proceedings validly initiated should be continued till appropriate
orders are passed by the competent authority though delinquent had
retired during the pendency of the enquiry and the proceedings were
not abated. Hon‟ble Supreme Court observed that it would be open to
the disciplinary authority to record in its order that, "but for retirement
he would have passed an order of dismissal or removal from service".
Since the delinquent had retired the disciplinary authority would record
in the order that the delinquent, "committed grave misconduct of the
proved charge" and suitable order be made". The Hon‟ble Supreme
Court held that therefore giving effect to the order of dismissal from
date of its order was of no consequence and became superfluous as he
was no longer in service as on that date but would be open to take such
action as is open in law. Thus order of Hon‟ble High Court order was
set aside.
20. The issue involved in the case of C.L.Verma (supra) was whether
administrative instructions would override statutory rules. In that case
Rule 2.2 of Pension Rules gave to Government right to withhold pension
in whole or any part thereof if petitioner was found guilty of misconduct
during his period of service. In that case order of dismissal was passed
by the High Court after he ceased to be in service and it was not a case
of judicial officer. It was in that context held that order of giving effect
to order of dismissal from date of its order was of no consequence and
became superfluous as he was no longer in service as on that day.
Hon‟ble Supreme Court set aside order of High Court. It was held that
an administrative instruction would give way and the rule will prevail.
This case is not at all relevant. Again employee was not a judicial
officer.
21. In the present case Hon‟ble Patna High Court had decided to
remove the petitioner from service forthwith on 28/29.06.1996 and
Registrar General conveyed to State Government on 02.07.1996 when
Petitioner was very much in service. In the present case rule 101(a)
provides that removal from public service for misconduct entails
forfeiture of past service. Rule 43(b) quoted above also shows that
action taken is in order.
22. We have considered the submissions made on behalf of the
parties and have also gone through the judgment relied upon by the
petitioner in the case of Sisir Kanta Satpathy (supra), which is the case
pertaining to the judicial officer. This case instead of helping the
petitioner supports the case of the respondents, inasmuch as in this
case, it has been observed by the Hon‟ble Supreme Court that the
formal order of retirement was passed by the Governor acting on the
recommendations of the High Court. The recommendations of High
Court were binding on the Governor to pass formal orders. But passing
or signing of such orders by the Governor will not necessarily take away
the control of the High Court vested in it under Article 235 of the
Constitution of India. High Court alone is entitled to initiate, to hold
enquiry and to take decision in respect of dismissal, removal, reduction
in rank or termination from service, but the formal order to give effect to
such a decision has to be passed by the State Governor on the
recommendations of the High Court. The Governor in such cases
merely acts on the recommendation of the High Court by signing
an order in that regard; but the procedure of the Governor formally
passing an order of retirement has to be complied with.
23. Relevant observations made by the Apex Court in the case of Sisir
Kanta Satapathy (supra) are reproduced hereunder:-
7. In State of Haryana v. Inder Prakash Anand H.C.S. and
Ors. AIR1976SC1841 , a four-Judge Bench of this Court had
an occasion to consider the scope and width of Article 235 of
the Constitution. That was a case in which the State
Government compulsorily retired a senior Subordinate Judge
though the High Court recommended only for his reversion.
This Court held :
Para 15--This Court in Bagchi's case said that control
vested in the High Court is over the conduct and
discipline of the members of the Judicial Service.
Orders passed in disciplinary jurisdiction by the High
Court are subject to an appeal as provided in the
conditions of service. The High Court further deals
with members of the Judicial Service in accordance
with the rules and conditions of service. This Court in
Bagchi's case said that the word "deal" points to
disciplinary and not merely administrative jurisdiction.
The order terminating the appointment of a member of
the service otherwise than upon his reaching the age
fixed for superannuation will be passed by the State
Government on the recommendation of the High
Court. This is because the High Court is not the
authority for appointing, removing, reducing the rank
or terminating the service.
Para 16 - It is true that the fixation of the age of
superannuation is the right of the State Government.
The curtailment of that period under rule governing
the conditions of service is a matter pertaining to
disciplinary control as well as administrative control.
Disciplinary control means not merely jurisdiction to
award punishment for misconduct. It also embraces
the power to determine whether the record of a
member of the service is satisfactory or not so as to
entitle him to continue in service for the full term till
he attains the age of superannuation. Administrative,
judicial and disciplinary control over members of the
judicial Service is vested solely in the High Court.
Premature retirement is made in the exercise of
administrative and disciplinary jurisdiction. It is
administrative because it is decided in public interest
to retire him prematurely. It is disciplinary because
the decision was taken that he does not deserve to
continue in service up to the normal age of
superannuation and that it is in the public interest to
do so.
Para 18 - The control vested in the High Court is
that if the High Court is of opinion that particular
judicial officer is not fit to be retained in service
the High Court will communicate that to the
Governor because the Governor is the authority to
dismiss, remove, reduce in rank or terminate the
appointment. In such cases it is the contemplation
in the Constitution that the Governor as the Head
of the State will act in harmony with the
recommendation of the High Court. If the
recommendation of the High Court is not held to
be binding on the State consequences will be
unfortunate. It is in public interest that the State
will accept the recommendation of the High Court.
The vesting of complete control over the
subordinate judiciary in the High Court leads to
this that the decision of the High Court in matters
within its jurisdiction will bind the State. "The
Government will act on the recommendation of the
High Court. That is the broad basis of Article 235.
xxx xxx xxx
12. In the last-mentioned case (Inder Prakash Anand) the
Government servant was officiating in the cadre of District
Judges. The High Court recommended that he should be
reverted to his substantive post of senior Subordinate
Judge/Chief Judicial Magistrate and, as such, allowed to
continue in service till the age of 58 years. Contrary to the
recommendation of the High Court, the State Government
passed an order under Rule 5.32(c) of the Punjab Civil
Service Rules, compulsorily retiring him from service at the
age of 55 years. Holding that the order of compulsory
retirement was invalid, this Court stressed that the power of
deciding whether a judicial officer should be retained in
service after attaining the age of 55 years upto the age of 58
years, vests in the High Court, and to hold otherwise "will
seriously affect the independence of the judiciary and take
away the control vested in the High Court". The formal
order of retirement, however, is passed by the Governor
acting on the recommendation of the High Court, that
being "the broad basis of Article 235". It was explained
that "in such cases it is the contemplation in the
Constitution, that the Governor as the Head of the State
will act in harmony with the recommendation of the
High Court". It was concluded that "the vesting of
complete control over the Subordinate Judiciary in the
High Court leads to this that the decision of the High
Court in matters within its jurisdiction will bind the
State". In other words, while inform, the High Court's
decision to compulsorily retire a subordinate judicial
officer in the exercise of its administrative or
disciplinary jurisdiction under Article 235 is advisory, in
substance and effect, it is well-nigh peremptory."
xxx xxx xxx
15. It is apparent from the observation extracted above that
this Court also understood the power of control of the High
Court as the power of taking a decision against a member of
the subordinate judicial service. The High Court is the only
authority that can take such a decision. The High Court will
hold an enquiry and decide on the result of such enquiry
whether any action will be taken against a member of the
subordinate judicial service. If it comes to the conclusion
that such an action is required to be taken, it will make a
recommendation in that regard to the State Governor who
will make an order in accordance with the recommendation
of the High Court.
16. The control of the High Court, as understood, will also be
applicable in the case of compulsory retirement in that the
High Court will, upon an enquiry, come to a conclusion
whether a member of the subordinate judicial service should
be retired prematurely or not. If the High Court comes to the
conclusion that such a member should be prematurely
retired, it will make a recommendation in that regard to the
Governor inasmuch as the Governor is the appointing
authority. The Governor will make a formal order of
compulsory retirement in accordance with the
recommendation of the High Court."
24. It would also be relevant to take note of paragraphs 46 and 47 of
the impugned judgment, which reads as under:-
"46. ........In any event, as discussed above, the
Standing Committee of the High Court acted as a High
Court. The recommendations had gone to the
Governor of the concerned State and only after
recommendations were accepted by the Governor then
punishment imposed became effective in accordance
with Article 235 of the Constitution of India as would
also be seen from the discussion held by the Apex
Court in the case of The Registrar (Administration),High
Court of Orissa, Cuttack Vs. Sisir Kanta Satapathy
(Dead) by Lrs. and Anr. (1999)7 SCC 725 relied upon
by the petitioner wherein it has been held:
17. In the instant case, the decision of the
Orissa High Court dated 4.2.87 (on the
Administrative Side) was required to be
forwarded to the Governor for passing an order
of compulsorily retirement. That was not done. It
was wrong for the High Court to have passed the
order of compulsory retirement itself..............
21. After the recommendation of the Full Court
was received, the Government on 2.12.91 chose
not to proceed further on the plea that the
matter was pending in the Supreme Court. They
declined to act further on the recommendation.
This, the Government could not have done. The
course open to the Government was to forward
the recommendation of the High Court to the
Governor who would have passed an order in
accordance with the recommendation made by
the High Court as has been held in State of
Haryana Vs. Inder Prakash Anand (1976) 2 SCC
977 because the recommendation of the High
Court was binding on the Government.
47. In the present case, the recommendations made
by the Standing Committee were sent to the State of
Bihar and had been accepted by the Governor and
consequently notification dated 02.11.1996 had been
issued. Thus, the aforesaid judgment does not come
to the rescue of the petitioner rather it supports the
case of the respondents."
25. At this stage, we may also take note of certain other observations
made by the Hon‟ble Supreme Court in the case of Sisir Kanta
Satapathy (supra):-
18. In High Court of Judicature for Rajasthan v. Ramesh
Chand Paliwal and Anr. (1999)ILLJ885SC , a two-Judge
Bench of the Court while construing the scope and extent of
Articles 233 to 235 of the Constitution, held as follows:
This article shows that the High Court has to
exercise its administrative, judicial and disciplinary
control over the members of the Judicial Service of
the State. The word "control", referred to in this
article, is used in a comprehensive sense to include
general superintendence of the working of the
subordinate courts, disciplinary control over the
Presiding Officers of the subordinate courts and to
recommend the imposition of punishment of
dismissal, removal and reduction in rank or
compulsory retirement. "Control" would also include
suspension of a member of the Judicial Service for
purposes of holding a disciplinary enquiry, transfer,
confirmation and promotion. (See State of Haryana v.
Inder Prakash Anand and State of U.P. v. Batuk Deo
Pati Tripathi). In State of Gujarat v. Ramesh Chandra
Mashruwala it was held that "control" in Article 235
means exclusive and not dual control. (See also Chief
Justice of A.P. v. L.V.A. Dixitulu; State of W.B. v.
Nriendra Nath Bagchi).
19. On going through the judgments of this Court right from
Shyam Lal v. State of U.P. (1954)IILLJ139SC down to High
Court of Judicature for Rajasthan v. Ramesh Chand Paliwal
and Anr. (1999)ILLJ885SC , one cannot but reach one
conclusion regarding the power of the High Court in the
matter of ordering compulsory retirement. That conclusion is
that the High Courts are vested with the disciplinary control
as well as administrative control over the Members of the
Judicial Service exclusively, but that does not mean that
they can also pass orders of dismissal, removal, reduction in
rank or termination from service while exercising
administrative and disciplinary control over the Members of
Judicial Service. Undoubtedly, the High Courts alone are
entitled to initiate, to hold enquiry and to take a decision in
respect of dismissal, removal, reduction in rank or
termination from service, but the formal order to give effect to
such a decision has to be passed only by the State Governor
on the recommendation of the High Court. It is well settled
again by a catena of decisions of this Court that the
recommendation of the High Court is binding on the State
Government/Governor [vide para 18 in Inder Prakash
Anand's case (supra)].
20. We are clearly of the view that while the High Court
retains the power of disciplinary control over the subordinate
judiciary, including the power to initiate disciplinary
proceedings, suspend them pending enquiries and impose
punishment on them but when it comes to the question of
dismissal, removal, reduction in rank or termination of the
services of the judicial officer, on any count whatsoever, the
High Court becomes only the recommending authority and
cannot itself pass such an order [vide Inder Prakash Anand's
case and Rajiah's case (supra)].
21. In the instant case, the decision of the Orissa High Court
dated 4.2.87 (on the Administrative Side) was required to be
forwarded to the Governor for passing an order of
compulsorily retirement. That was not done. It was wrong for
the High Court to have passed the order of compulsory
retirement itself. The judicial side of the High Court rightly
decided the Writ Petition in favour of the judicial officers and
held the order dated 5,2.87 to be bad. In the words of the
Division Bench of the High Court :
There is a stronger constitutional objection to accept
the submission of Shri Nayak for regarding the High
Court as the appointing authority of the Chief Judicial
Magistrate on the basis of what has been provided in
Rule 10 of the Orissa Superior Judicial Service Rules,
1963, inasmuch as it has been laid down in Article
234 of the Constitution that appointments of persons
other than District Judges to the judicial service of a
State shall be made by the Governor of the State in
accordance with the rules made by him in that behalf.
The aforesaid rules are one set of such rules. So, no
provision in the rules could have altered the
constitutional position that the Governor of the State
is the appointing authority of persons other than
District Judges also. Conferment of this power on the
High Court by virtue of what is stated in Rule 10 of the
Orissa Superior Judicial Service Rules would have
clashed with the constitutional mandate. We would
therefore, not accept because of what is stated in Rule
10 that the High Court is the appointing authority of a
Chief Judicial Magistrate.
xxx xxx xxx
23. Before closing this aspect of the discussion, we may say
that we are conscious of the legal position that passing of an
order of compulsory retirement by the Governor is a formal
matter as stated in Rajiah 's case (supra) because, according
to this decision, the Governor in such cases merely acts on
the recommendation of the High Court by signing an order in
that regard; but the procedure of the Governor formally
passing an order of retirement has to be complied with. So
long as there is no formal order of the Governor, the
compulsory retirement as directed by the High Court cannot
take effect, as opined in Rajiah's case itself.
xxx xxx xxx
30. After the recommendation of the Full Court was received,
the Government on 2.12.91 chose not to proceed further on
the plea that the matter was pending in the Supreme Court.
They declined to act further on the recommendation. This,
the Government could not have done. The course open to the
Government was to forward the recommendation of the High
Court to the Governor who would have passed an order in
accordance with the recommendation made by the High
Court as has been held in Inder Prakash Anand's case
(supra) because the recommendation of the High Court was
binding on the Government.
31. By not making an order of compulsory retirement on the
recommendation of the High Court, a peculiar situation was
created in the sense that the Judicial Officers were neither in
service nor were they technically out of service. They,
however, did not perform any work. The question, therefore,
now arises as to what is the manner in which relief can be
moulded to balance equities between the parties by this
Court, so that the litigation itself is given a quietous.
xxx xxx xxx
33. Mr. Jayant Das, learned Advocate General, appearing for
the State Government, as well as learned Counsel appearing
for the High Court rightly agreed with the suggestion made
on behalf of the Judicial Officers that on the basis of the
recommendation made by the Full Court of the High Court
on 7.11.91, the Governor of State be requested to pass a
formal order of compulsory retirement of Judicial Officers
with effect from the date when the recommendation was
received by the Government, i.e. 2.12.91. The Judicial
Officers (which would include legal representatives in the
case of deceased 1st respondent in C.A. No. 4751/92) would,
thus, be entitled to their salary, allowances and all other
consequential benefits till 2.12.91. This suggestion appeals
to us also as it will balance the equities between the parties
and set at naught a controversy which has unnecessarily
remained pending for so long. The arrears as per the above
terms shall be paid to the Judicial Officers within three
months from the date of receipt of this judgment.
26. The aforesaid observations of the Hon‟ble Supreme Court make it
very clear that,
(i) The High Court in view of Article 235 of the
Constitution of India is not only entitled to hold a
departmental enquiry against a judicial officer working in
subordinate courts inasmuch as, the High Court has a
disciplinary control over the Presiding Officers of the
subordinate courts but also to recommend imposition of
punishment of dismissal, removal, reduction in rank or
compulsory retirement.
(ii) Once the recommendation is made, the
recommendation of the High Court is binding on the State
Government/Governor.
(iii) Once the recommendations are received, the
Government is required to pass an order in terms of the
recommendations of the High Court.
(iv) In a peculiar situation like the one present in this case
that when the notification in question was issued, a
situation could not have been created by the Government,
where a judicial officer is not in service or still in service.
(v) In such circumstances, to balance the equities, the
Court can adopt a procedure which can meet the
requirement of law inasmuch as, in such cases on the basis
of the recommendations made by the Full Court, the
Governor can be requested to pass a formal order in
accordance with the recommendations made.
27. Fortunately, in this case, the recommendations of the High Court
have been accepted by the Governor by issuing notification dated
2.11.1996, which reads as under:-
"GOVERNMENT OF BIHAR
DEPARTMENT OF PERSONNEL &
ADMINISTRATIVE REFORMS
No.7/A1-6013/96-Pers.11851 Patna 15, Dated: 2 nd
November, 1996
In the light of the recommendation of the Hon‟ble
High Court of Patna, Shri Kashi Nath Roy, the
then District & Sessions Judge, Gumla
(presently suspended) is removed from service
from Bihar Higher Judicial Service with
immediate effect.
By order of the Governor of Bihar
Sd/-(A.B. Prasad)
Joint Secretary to the Government."
28. The net effect of the aforesaid notification is that the
recommendation of the High Court removing the petitioner from service
with immediate effect has been virtually accepted by the Governor. The
only difference is that the notification has been passed on 02.11.1996.
However, in view of the recommendation in the order recommending the
removal of the petitioner from service with immediate effect, no difficulty
arises in this case.
29. In view of the above, we find no merit in the review petition filed
by the petitioner and the same is accordingly dismissed with no order
as to costs.
MOOL CHAND GARG, J.
MARCH 11, 2011 ANIL KUMAR, J.
dc
