Govind Singh vs Registrar General
2021 Latest Caselaw 5174 UK

         IN THE HIGH COURT OF UTTARAKHAND
                     AT NAINITAL
                Writ Petition (S/S) No. 1840 of 2016

Govind Singh                                                .......Petitioner
                                      Vs.

Registrar General, High Court of Uttarakhand & another
                                                     .....Respondents

Mr. Anil Kumar Joshi, Advocate, for the petitioner. Mr. Rakesh Thapliyal, Senior Advocate, for the respondent No.1. Mr. Bhagwat Mehra, Advocate, for the respondent No.2.

Hon'ble Sharad Kumar Sharma, J (Oral)

Though apparently very interesting, but a non-existing question has been borrowed to be argued, for the purposes of substantiating the stand taken by the respondents, for the purposes of passing the impugned order dated 01.04.2015, by virtue of which, the respondent No.1, had proceeded to dismiss the services of the petitioner; as well as the order dated 08.04.2015, which has been passed by the respondent No.2, and the consequential order of 02.06.2016, passed by the respondent No.1. The petitioner has modulated the relief in the writ petition in the following manner:-

"i. Issue a writ order or direction in the nature of certiorari to quashing the impugned order dated 01.04.2015 passed respondent No.1 (Annexure No.8), order dated 08.04.2015 passed by respondent no.2 (Annexure No.9) and order dated 2.6.2016 passed by respondent No.1 (Annexure No.11). ii. Issue a writ order or direction in the nature of mandamus commanding the respondents to reinstate the petitioner in service with full back wages and continuity in service along with all consequential benefits.

iii. Issue any other or further writ, order or direction which this Hon'ble Court may deem fit and proper in the circumstances of the case. iv. Award the cost of the petition in favour of the petitioner."

2. The brief facts of the case are, that as a consequence of the initiation of the proceedings on a complaint which was submitted

by one Shri Sunil Kumar, as against the petitioner on 18.02.2013, it was foundationed on the ground, that the petitioner while being an employee; of District Judgeship i.e. as a Class IV of the District Judgeship, of Haridwar, had assured an appointment to the complainant in the District Judgeship, of Haridwar, on the payment of Rupees One Lakh Only. On the said set of allegations, the inquiry was conducted, the Inquiry Officer who was thus appointed, and as a consequence thereto on 12.09.2013, i.e. Additional Civil Judge, (Senior Division), prepared the preliminary inquiry report, and had submitted the report to the District Judge, Haridwar, for further action. Subsequent thereto, the final inquiry was conducted through the office of 2nd Additional District Judge, on 11.11.2013, he had issued a show- cause to the petitioner calling upon his reply and also for his participation in the final inquiry proceedings, which was supposed to be conducted by the 2nd Additional District Judge, Haridwar.

3. The petitioner contends, that he responded to the said notice of 11.11.2013, by filing a detailed reply on 13.11.2013. The learned District Judge, Haridwar, under the exercise of its powers and bringing the act of the petitioner, within the ambit to Rule 3 (1) to be read with Rule 3 (2) of the Disciplinary and Appeal Rules of 2003, proceeded to pass an order of the punishment on 02.01.2014, whereby the petitioner's three increments were directed to be withheld with immediate effect, and further a word of caution was given to the petitioner, that in case if there is a recurrence of the act complaint of, his services would be terminated, if found engaged in any other such cases.

4. Consequent to the order of the District Judge, dated 02.01.2014, holding the petitioner guilty of the misconduct complained of on 18.02.2013, and on the culmination of the disciplinary proceedings on 02.01.2014, in fact on an administrative side, the District Judge, Haridwar, had formally forwarded the order of the punishment of the petitioner to the Registrar Vigilance of the High Court, for its appropriate communication in order to fulfill, the administrative requirement.

5. At this stage, it would be relevant to point out that as against the principal order of punishment dated 02.01.2014, whereby three increments were directed to be withheld, the petitioner has not resorted to any other legal recourse or preferring of an appeal as against the principal order of punishment, and rather has candidly accepted the same.

6. But, while responding to the order, which was forwarded by the District Judge, to the Registrar Vigilance of the High Court, in fact the Registrar Vigilance, vide his communication dated 07.11.2014, had enhanced the punishment by substituting the same contending thereof, that in the exercise of its revisional powers under Rule 13 (c) of the Uttarakhand Government Servant Disciplinary and Appeal of Rules, 2003, since the petitioner was found to be guilty and as per the inquiry report No.09 of 2013, which was forwarded by the District Judge, along with an order of the punishment of 02.01.2014, it was opined by the Registrar Vigilance that the "Court" feels that the punishment was insufficient, and hence under the set of circumstances and because of the allegations the proposal was made for dismissal of the petitioner from his services, and hence a response was called upon from the petitioner by the communication of the Registrar Vigilance dated 07.11.2014.

7. Before proceeding further while dealing with the factual aspect, this Court feels it apt to refer to Rule 13, as provided under the Disciplinary and Appeal Rules of 2003, which is extracted hereunder:-

"13. Revision.- Notwithstanding anything contained in these rules, the "Government" may of its own motion or on the representation of concerned Government Servant call for the record of any case decided by an authority subordinate to it in the exercise of any power conferred on such authority by these rules; and

(a) Confirm, modify or reverse the order passed by such authority, or

(b) Direct that a further inquiry be held in the case, or

(c) Reduce or enhance the penalty imposed by the order, or

(d) Make such other order in the case as it may deem fit."

8. The sub rule (3) of Rule 13 of the Rules, is in fact a revisional power, which has been given to the Government, which may either on its own motion or on a representation of the Government Servant, who is affected by an order of punishment passed by the subordinate authority, had certain options provided, therein, under Rule 13 itself, which included the options of enhancement of the punishment by modifying it or reversing the punishment as awarded by the said authority. Two words, which will be having the relevance for the purposes of the present writ petition is (1) The Government (2) The Government Servant. For the said purposes, if the Rules of 2003, itself is taken into consideration, in the Rules itself, the terms "Government" has been defined under sub- rule (g) of Rule (2) of the Rules of 2003, which reads as under:-

"(g) "Government" means the State Government of Uttaranchal:

(h) "Government Servant" means a person appointed to public services and posts in connection with the affairs of the State of Uttaranchal;"

9. The Government Servant has been defined under sub-rule

(h) of Rule 2, of the Rules, which defines the Government Servant as to be that it means the person appointed to the public services and the post and responsibilities are in connection with the affairs of the "State of Uttaranchal".

10. On a simplicitor reading of the definition clause, the word "Government" have been exclusively made applicable to be confined to the State, and the "Government Servant" as defined therein under the Rules as per opinion of this Court it will apply to those public servants, who are discharging their official responsibilities in relation to the affairs related to the State of Uttarakhand. Under a simple analogy and interpretation, either of the

two factors required to be fulfilled for the purposes of attracting Rule 13 of the Rules, that it is rather the "Government" which can take an action as against the "Government Servant", who is discharging his duties qua the responsibilities vested towards the State.

11. I am of the view that the Rules of 2003, would not be applicable in the instant case, in order to enable and empower the Registrar Vigilance of the High Court to attract Rule 13, by treating the High Court, and bringing the High Court, within the ambit of the definition of Government as defined under sub-rule (g) of Rule (2) of the Rules of the 2003, and the petitioner within the definition of the public servant within sub-rule (h) of the Rule (2) of the Rules, as the petitioner's function would not be treated as to be a function or a duty discharged which has got any relation with regards to the affairs of the State because under the Constitution, the "High Courts" have got a different legal existence under Chapter V Article 214 of the Constitution of India, and it is distinct entity altogether than to the State as defined therein under Article 12 of the Constitution of India. Hence, the very foundation of attracting Rule 13 by applying the implications of Rule 3, would not be applicable and available under law to the Registrar Vigilance.

12. There is another reason for not accepting the contentions, and the logic assigned by the respondents, it is that for the purposes of governing the service conditions of the subordinate courts, the State while exercising it powers under the proviso to Article 309 of the Constitution of India, had independently legislated the Rules called as "Uttar Pradesh Subordinate Courts Staff (Punishment and Appeal) Rules, 1976", and in the definition clause given, therein, the "High Court" has been independently defined, and so are the "subordinate courts", have been defined under sub-rule (b) of Rule 2 of the Rules of 1976, which is extracted hereunder:-

"2. Definitions. - In these rules, unless the context otherwise requires.-

(a) "High Court" means the High Court of Judicature at Allahabad, and

(b) "Subordinate Court" means a Civil or Criminal Court, under the administrative control of the High Court."

13. Hence, on a comparative scrutiny of the two Rules governing the same field of law of conducting a disciplinary proceedings against the Staff when the field in relation to the conducting the disciplinary proceedings against the subordinate staff attached to the office of the District Judgeship, or the subordinate Judgeship are concerned, as defined under the Rules of 1976, contains a self contained provisions, and could govern the field. As general law applicable upon the government servants, cannot be borrowed to be applied on the staff of subordinate court, when the field of law stands occupied to be applied upon staff of subordinate courts, as the case at hand is.

14. In that eventuality, a parallel or a similar provisions as applicable to the State Government under the Rules of 2003, cannot be attracted to be made applicable for enhancement of the punishment and that too by mitigating or diluting the definition of the High Court provided under Rule 2 of the Rules of 1976.

15. This Court is of the view that when the service conditions of the subordinate staff of the subordinate courts defined under the Rules of 1976, relating to the disciplinary action, which has to be taken against them is provided under the Rules of 1976. The Rules of 2003, cannot be borrowed to be attracted on the whims and fancies of the Registrar Vigilance of the High Court, to attract the implications of Rule 13 for the purposes of exercising of suo moto revisional powers for enhancement of the punishment, on an administrative reference being made by way of the communication made by the District Judge, Haridwar, to an already awarded punishment of withholding of three increments in relation to the petitioner.

16. Even if the two Rules are correspondingly read together, the Rules of 2003, which provides for an exercise of suo moto powers

for the purposes of reversing or modifying the judgments or orders of punishment under Rule 13A, since the Rules of 1976, which exclusively governs the service conditions of the subordinate staff, of District Judgeship, and it does not have a corresponding or a parallel provisions similar to that as provided under Rule 13 of the Rules of 2003, it would be deemed, that legally the power of revision in the absence of there being a legislative mandate, vesting with the authority provided under the Rules of 1976 the similar powers. The Rules of 2003 cannot be isolatedly attracted to be made applicable for the purposes of enhancing the punishment, particularly when the Rules, itself is silent granting the suo moto power to enhance the punishment.

17. However, in the instant case, based on the communication of the Registrar Vigilance dated 07.11.2014, the respondents had proceeded to pass the impugned order by virtue of which, the order of punishment of withholding of the three increments as rendered on 02.01.2014 against the petitioner, has been enhanced to an order of dismissal, and as a consequence to the communication made by the Registrar Vigilance to the District Judge, while responding to the letter dated 07.11.2014, the District Judge, had passed the impugned order dated 01.04.2015, whereby the punishment of the petitioner has been enhanced, and his services has been dispensed with.

18. The learned District Judge, while reacting to the aforesaid two correspondences, had passed the ultimate order on 02.06.2016, which was initially germinated and has it geneses from the order of the Registrar Vigilance dated 07.11.2014, which has already been held to be non sustainable because of the lack of competence, being vested with the Registrar Vigilance, to exercise the powers under the Rule 13 (c) of the Rules of 2003, for the purposes of exercising of the suo moto powers, and to place the "High Court" on a common pedestal as if it is the "State", as defined under the Rules of 2003. Hence, the very foundation of taking of an action by the District Judge, by passing of an order while exercising his appellate power,

and affirming the order of the dismissal, this Court is of the view that the entire exercise undertaken by the respondents in pursuance to the communication dated 07.11.2014, is in contravention to the explicit Rules, as provided and governing the field of conducting the disciplinary proceedings against the ministerial staff of the subordinate courts, and as such, the entire action taken by the respondents for dispensing the services of the petitioner since apparently happens to be contrary to the Rules itself, and beyond the ambit of powers vested with the Authority under the Rules of 1976, it is legally vitiated.

19. Hence, the writ petition is allowed, and the impugned orders are set aside, and as a consequence thereto, the petitioner would be treated to be in service with effect from the date of the passing of the order of the dismissal and would be accordingly remunerated with all the service benefits which he would have been otherwise entitled to receive, had the impugned order of dismissal not passed by the Registrar Vigilance, and consequently by the District Judge, in the exercise of suo moto powers under sub-rule (c) of Rule 13 of the Rules of 2003, and he would be entitled for all the consequential benefits, which he would have been otherwise entitled to receive.

20. Subject to the aforesaid observations, the writ petition stands allowed.

(Sharad Kumar Sharma, J.) 16.12.2021 NR/