# DEV SINGH & ORS v. f REGISTRAR, PUNJAB & HARYANA HIGH COURT & ORS

- **Citation:** [1987] 2 S.C.R. 1005
- **Court:** Supreme Court of India
- **Decided:** 1987
- **Bench:** R.S. Patiiak C.J, V. Khalid
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dev-singh-ors-v-f-registrar-punjab-haryana-high-court-ors-9587
- **Pages:** 25

## Headnote

B
•
·
·
Rules and Orders of the Punjab High Court Vol. I, Chapter 18-A,
Rules IX and X: Dismissal of ministerial staff of subordinate courts by
District Judge-Service appeal disposed of by High Court-Whether
judicial decision.
c
Constitution of India, Articles 136 and 235: Removal from service
of ministerial staff by District Judge-Service appeal dismissed by High
_J,fourt-Decision whether judicial or administrative-Whether assailable in petition for special leave.
·
Sub-section (2) of Section 35 of the Punjab Courts Act, 1918 conD
fers power of appointment of ministerial officers of all courts controlled
by a District Court and their suspension and removal on the District
Court. Sub-section (3) makes every appointment subject to such rules
as the High Court may prescribe in this behalf, while sub-section (4)
; -f111akes orders passed by the District Judge subject to the control of the
High Court.
.
E
•
Chapter 18-A of the High Court Rules and Orders framed under
Section 35(3) conttols the appointments, promotion and punishment of
J>_. ministerial officials in the District and other civil courts, other than the
High Court. Sub-rule 2(a) of Rule IX in that Chapter enables the District Judge to inflict any of the penalties mentioned in sub-rule (1):
.,.)censure, fine, recovery of any pecuniary loss, withholding of increments
or promotions, suspension, removal and dismissal of the ministerial
officers of his own court or any court subordinate to him other than the
Court of Small Causes. Sub-rule (2) of Rule X provides Ior appeals to
F
the High Court against penalties. Sub-rule (3) requires the persons
appea.ling to the High Court to do so by a petition to the District Judge, G
who shall forward the same to the Registrar of the High Court with
--.( remarks that !ie may wish to make. After reading the petition the High
Court may either (a) summarily reject it without hearing the petitioner;
(b) refer it to the District Judge for report and on receipt of such report
reject the petition without hearing; or (c) hear the petitioner, and where
other persons are held to be concerned such other person in open court.
H
1005
1006
SUPREME COURT REPORTS
t19s1J 2 s.c.R.
A Sub-rule (4) forbids the petitioners to attend personally at the High
Court unless summoned and provides for communication to them of
orders on their petitions through the District Judge.
The appellants, who were the employees in the ministerial estab-
. lishment of the courts at Ferozepur and Zlra, were alleged to have
B taken a prominent part in raising objectionable slogans against the ·
Judicial Magistrate and the District Judge, in a d@monstrati11n orga·
nised by the subordinate court officials, to protest against the slapping
of a subordinate by the Judicial Magistrate, Zira. They were charge·
sheeted for their misconduct. After enquiry it was found that they
contravened Rule 7(1) of the Government Employees (Conduct) Rules,
1966 by acting prejudicially to the public order, decency and morality
· C and were dismissed from service by the. District judge in his capacity as
the punishing authority.
D
E
The appellants preferred a service appeal before the High Court
which was dismissed.
While granting the special leave on 2nd April, 1982 this Court
made the following order:
"Appeal will be heard ....... on the preliminary issue as to
whether the High Court in disposal of appeal was acting in
administrative capacity under Art. 235 or as a Tribunal or as a
High Court and the circumstances in which the appeal was main·
tained, if so."
--t
It was contended on behalf of the appellants that the decision of
the High Court in this case was the judicial decision of a tribunal which
J' could be examined by this Court under Article 136 of the Constitution.
~
~ismissing the appeal, the Court,
HELD: 1.1 The appeal is not maintainable. Ev•ry decision or
order by an authority which has a duty to act judicially is not subject to
G appeal to this Court. Article 136 contemplates appeals onl

## Text

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DEV SINGH & ORS.
A
v.
-.f REGISTRAR, PUNJAB & HARYANA HIGH COURT & ORS.
APRil: 15, 1987
[R.S. PATIIAK C.J. AND V. KHALID, J.]
B
•
·
·
Rules and Orders of the Punjab High Court Vol. I, Chapter 18-A,
Rules IX and X: Dismissal of ministerial staff of subordinate courts by
District Judge-Service appeal disposed of by High Court-Whether
judicial decision.
c
Constitution of India, Articles 136 and 235: Removal from service
of ministerial staff by District Judge-Service appeal dismissed by High
_J,fourt-Decision whether judicial or administrative-Whether assailable in petition for special leave.
·
Sub-section (2) of Section 35 of the Punjab Courts Act, 1918 conD
fers power of appointment of ministerial officers of all courts controlled
by a District Court and their suspension and removal on the District
Court. Sub-section (3) makes every appointment subject to such rules
as the High Court may prescribe in this behalf, while sub-section (4)
; -f111akes orders passed by the District Judge subject to the control of the
High Court.
.
E
•
Chapter 18-A of the High Court Rules and Orders framed under
Section 35(3) conttols the appointments, promotion and punishment of
J>_. ministerial officials in the District and other civil courts, other than the
High Court. Sub-rule 2(a) of Rule IX in that Chapter enables the District Judge to inflict any of the penalties mentioned in sub-rule (1):
.,.)censure, fine, recovery of any pecuniary loss, withholding of increments
or promotions, suspension, removal and dismissal of the ministerial
officers of his own court or any court subordinate to him other than the
Court of Small Causes. Sub-rule (2) of Rule X provides Ior appeals to
F
the High Court against penalties. Sub-rule (3) requires the persons
appea.ling to the High Court to do so by a petition to the District Judge, G
who shall forward the same to the Registrar of the High Court with
--.( remarks that !ie may wish to make. After reading the petition the High
Court may either (a) summarily reject it without hearing the petitioner;
(b) refer it to the District Judge for report and on receipt of such report
reject the petition without hearing; or (c) hear the petitioner, and where
other persons are held to be concerned such other person in open court.
H
1005
1006
SUPREME COURT REPORTS
t19s1J 2 s.c.R.
A Sub-rule (4) forbids the petitioners to attend personally at the High
Court unless summoned and provides for communication to them of
orders on their petitions through the District Judge.
The appellants, who were the employees in the ministerial estab-
. lishment of the courts at Ferozepur and Zlra, were alleged to have
B taken a prominent part in raising objectionable slogans against the ·
Judicial Magistrate and the District Judge, in a d@monstrati11n orga·
nised by the subordinate court officials, to protest against the slapping
of a subordinate by the Judicial Magistrate, Zira. They were charge·
sheeted for their misconduct. After enquiry it was found that they
contravened Rule 7(1) of the Government Employees (Conduct) Rules,
1966 by acting prejudicially to the public order, decency and morality
· C and were dismissed from service by the. District judge in his capacity as
the punishing authority.
D
E
The appellants preferred a service appeal before the High Court
which was dismissed.
While granting the special leave on 2nd April, 1982 this Court
made the following order:
"Appeal will be heard ....... on the preliminary issue as to
whether the High Court in disposal of appeal was acting in
administrative capacity under Art. 235 or as a Tribunal or as a
High Court and the circumstances in which the appeal was main·
tained, if so."
--t
It was contended on behalf of the appellants that the decision of
the High Court in this case was the judicial decision of a tribunal which
J' could be examined by this Court under Article 136 of the Constitution.
~
~ismissing the appeal, the Court,
HELD: 1.1 The appeal is not maintainable. Ev•ry decision or
order by an authority which has a duty to act judicially is not subject to
G appeal to this Court. Article 136 contemplates appeals only from adjudica·
·lions, of courts and tribunals. Such adjudication must doubtless be judicial.
'r"
If the 'power exercised was administrative in nature it would exclude such a
tribunal from the ambit of Article 136. [1029C; 1028H; 10200]
1.2 Every authority which is required to act j~qicially either
H by its constitution or by virtue of the authority conferred upon it is
DEV SINGH v. PUNJAB & HARYANA HIGH COURT
1007
nQt necessarily a tribunal for the purposes of Article 136. A tribunal, A
wbose adjudication is subject to appeal must besides being under a
duty to act judicially, be a body invested with the judicial power of the
State. [1029A]
•
1.3 There is a clear distinction between courts of law exercising
judicial powers and other bodies. Decisions by courts are clearly judi· B
cial. That is not the case with bodies exercising administrative or execu·
tlve powers. In certain matters even judges have to act administratively
and in so doing may have to act quasi-judicially in dealing with matters
entrusted to them. It is only where the authorities are req1d1'fd to act
judicially either by express provisions of the statute or by necessary
implicatj11n that the decision of such an authority would amount to a C
quasi-judicial proceeding. When Judge§ ill e11'.ercise of their administra·
· . tive functions decide cases \I rP!l!lllt be said that their decisions are
A either judicial 11r qq!'ll!~l!liirial decisions. The test that has to be applied
to find ou\ w,1,tei~ef ~n order Is a judicial order or not is the existence of
a Ii~ b~hy,eelJ the partjes. [1028F; 1025C]
,.
In the instant case, the High Court while disposing of the appeal
was not acting as a tribunal. It was 11ding purely administratively. It
was not resolving any dispyle or controversy between two adversaries
but only exer~jsing Its power of control over the subordinate judiciary
wbich is the same. as control under Article 235 -of the Constitution of
D
I~dia. tio~!IE1 1021c; 10298; 1013Cl
E
Durga Shankar Mehta v. Thakur Raghuraj Singh & Ors., [1955]
1 SCR 267; Bachhittar Singh v. The State of Punjab, [1962] Suppl. 3
SCR 713; Associated Cement Companies Ltd. v. P.N. Sharma & Anr,
[1965] 2 SCR 366; Harinagar Sugar Mills Ltd. v. Shyam Sundar Jhun·
jhunwala, [1962] 2 SCR 339; Jaswant Sugar Mills Ltd. v. LakshmiF
chand and others, [1963] Suppl. 1 SCR 242; Engineering Mazdoor
Sabha v. Hind Cycles Limited, Bombay, [1963] Suppl. 1 SCR 625;
Inda-China Steam Navigation Co. Ltd. v. Jasjit Singh, Additional Collector of Customs & Ors., [1964] 6 SCR 594 and APHLC v. M.A.
Sangma, [1978] 1SCR393, referred to.
2 .1 In deciding the appeal' under Rule X in Chapter 18· A the
. High Court exercises only a supervisory administrative control over the
subordinate courts and does not act as a tribunal disposing of an appeal
involving a lis between two rival parties and arriving at a judicial
decision. [1019D]
G
H
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B
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1008
SUPREME COURT REPORTS
(1987] 2 S.C.R,
2.2 The appeal under Rule X(3) has to be by a petition, to be
routed through the District Judge who sends it to the Registrar of the ~~-
High Court. These are procedural formalities which normally govern
·
appeals preferred before the Hlgli Court on the adm'inistrative side.
The permission given to the authority who imposes penalty to record hi!>
, ..,
own remarks which he wishes to make concerning his own order i~
further proof of the fact that what the High Court has to consider is not
a matter on the judicial side but one in its power of control and -·•
superintendence over the subordinate courts. [1018A]
)..... '
2.3 The procedure contained in Rule X(3) of hearing the petition -~ _
is not similar to the procedure followed in regular judicial proceedings.
i~
It is not obligatory for the High Court to hear the petitioner. It can go
into the papers and reject It summarily without giving the petitioner an
opportunity to be beard. Alternatively, it cy"ld get a report from the .
DistrictJudge and on receipt of such a report disiiiiSI! jt wi~llP"~ hearingA
the petitioner. Thirdly, it could give a hearing to the petiti!IRl'f '!ii~ ?WI
thpse who will be affected. This manner of disposal of the petition make&
D
it apparent that it is not strictly a judicial proceeding but has all the
trappings of an administrative proceeding and an administrative
decision. U018E·H]
E
F
G
2.4 Sub-rule (4) of Rule. X again marks a complete departure
from the normal judicial proceedi11g before a court. The petitioners are +-
forbidden to attend personally at the High Court. They can dq sq.pnly
when summoned. In a judicial proceeding, the party has a rlgbl IQ
appear personally or through counsel. This denial also robs the appeal -
of its character of a judicial proceeding. [1019C]
---{,
2.5 The fact that Rule X is found in Chapter 18-A, which deals
·
/
.
.
with control, also gives the administrative shade to the proceeding un· ;i....,..
der this Rule. Section 35(4) of the Punjab Courts Act, 19J8, which '
stipulates that any order passed by the District Judge under this section
shall be subject to the control of the High Court, further fortifies tho
view that the proceedings under Rule X(3) and th_e decisions made .
thereunder are not judicial in nature. [1019E]
It cannot, therefore, be said that in ihe instant case the High Court
while deciding the appeal acted as a tribunal whose order can be challenged before this Court under Article 136 of the Constitution. [1019F]
{The Registrar to transfer the records of the case to the High
H
Court. The latter to take the petition on its file as a petition under
DEV SINGH v. PUNJAB &HARYANAHIGHCOURT[KHALID,J.) 1009
Article 226 and dispose of the m@lter expeditiously.) [1029Dl
CIVII, APPELLATE JURISDICTION: Civil Appeal No. 1278
of 1\182.
Fnim tjie Judgment and Order dated 3-0.9.1981 of the Punjab
A
and Haryana High Court in Service Appeals of the Appellants.
B
V.M. Tarkunde, Mrs. Urmila Kapur and Ms. Janki Srinivasan
for the Appellants.
'
Kapil Sibal and Rathin Dass for the Respondents.
Tlw Judgment of the Court was delivered by
c
KHALID, J. 1. The appellants were the employees in the· ministerial establishment of the Courts at Ferozepore 'and Zira having
entered into service varying from the year 1952 to 1965. They are
members of the Punjab Civil Courts Clerks Association. On 24th July,
D
1980, there was an inci\lent in the Court of Shri N .S. Mundra, Judicial
Magistrate, ~st Class, Zira. On that day, one Jagdish Lal, a Senior
Ah\mad of the Court was slapped. He is one of the appellants in this
appe.al. On the day he was slapped, he presented a representation to
the District and Sessions Judge Shri Nehra. An enquiry was directed to
be held by the Senior Sub-Judge, Ferozepore into the incident. In this
enquiry, it was found that Shri Mundra, Judicial Magistrate, Zira slapped J agdish Lal. This incident caused resentment in the Association
and the Association, therefore, felt that something should be done to
d11monstrate this resentment. Accordingly, it was decided by the
Association that a request should be made to the District and Sessions
Judge, Ferozepore, to transfer Jagdish Lal from the Court at Zira to
any other Court so that calm could be restored. The appellants among
others met the District and Sessions Judge for this purpose on 28-71980. It is. alleged that the Sessions Judge did not accede to the request
E
F
of the representatives of the Association to plead their case before
him. This aggravated the situation. Though the association and their
representatives including the appellants were keen to resolve the matG
ter, the District and Sessions Judge adopted a hardened attitude. The
matter came to the notice of the High Court. An enquiry by Justice
S.P. Goyal of the High Court of Punjab and Haryana was directed to
be held and it was scheduled for 9th August, 1980. He was to reach the
Canal Rest House at 4.00 P.M., but he could reach only ~t 7.30 J;>,.M.
At that time, the District and Sessions Judge, along with other Judicial
H
1010
SUPREME COURT REPORTS
[1987] 2 $.C.R.
A
officers were present to receive him. A demonstration was organised
by the subordinate Court officials. There was continued slogan shout-
-~
ing from 4.00 P.M. till 7.30 P.M. before Justice Goyal's arrival. The
appellants are said to have taken a prominent part in raising objectionB
c
able slogans. The slogans are:
"N.S. Mundra Murdabad; N.S. Mundra Hai Hai; Dakia
Mahajan Superintendent Murdabad; B.S. Nehra Murdabad; B.S. Nehra naun Challa .Karo; Kata! Nehra Murda-
. bad: B.S. Nehra Murdabad;"
The appellants were charg~,s!Jeeted for this conduct of theirs.
2. Justice Goyal alighted from bi~ .c~r and went inside the visiting room of the rest house. He called the rnpr~si;ntatives of the Association. Some of them met him. They came out aft11r Oie m@~ing. There
were other demonstrators waiting for the result of the tnlk,s, Afi!lr they
came back, those who raised slogans disbursed. On 11th August, 198.0,
D the District Judge sent a letter to Shri G.S. Khurana, Chief Judicial
Magistrate, F~ro;z,epore, to hold preliminary e.nquiry into the demonstration by the Court official_s in front of the Can.al Rest House and the
slogans raised there. Mr. J{hurana recorded the statement& of some
officers on the same day and submitted his report on that very d~y
itself. According to his report, the appellants had taken a prominent
E part in raising objectionable slogans in question. On tile basis of this
report, the District Judge placed the appellants under susp.ension by
his order dated 14-8-1980. On 12th August, 1980, the Di~trict Jw!g~
had intimated the High Court about the finding in the preliminary
report and had sought guidance of the High Court. The appellants
were supplied with the articles of the charges and statement• of impuF
talion etc. They gave their replies. While admitting that they had
taken part in the demonstration on the day in question they denied
that they had taken a prominent part in the demonstration as leaders
in raising objectionable and defamatory slogans· against their superior
officers. A formal enquiry was ordered against these appellants. After
a detailed enquiry it was found that the appellants had contravened
G inter alia Rule 7(1) of the Government Employees (Conduct) Rules,
1966, and had thus acted prejudicially to the public order, decency and
morality and thereby contravened Rule 7(1) of the Government Employees (Conduct) Rules, 1966. The District Judge, Ferozepore in his
capacity as the punishing authority then served a show cause notice on
all the appellants as to why the penalty of dimissal from service be not
H imposed on them. The appellants submitted their explanation. After
< ~·
l
-~-
DEV SINGH v. PUNJAB & HARY ANA HIGH COURT (KHALID, J.l 1011
considering the replies, the District Judge, by his order dated A
17.11.1980, imposed on them punishment of dismissal from service.
3. The appellants preferred a service appeal in the High Court of
Punjab and Haryana at Chandigarh. The High Court considered the
various contentions raised by the appellants in detail and dismissed the
appeal as having no merit. One of the employees who had also filed
B
appeal before the High Court withdrew his appeal and is now reported
to be practising law.
This appeal has, therefore, come up before us by specjal leave
under Article 136, against the order of the Single Judge in the above
mentioned service appeal.
We have given only the bare facts in this judgment for the reason
that this Court issued notice on the SLP for consideration of a preliminary point only which will be evident by the orders passed on
3.12.1981, 4...J.-1982 and 2-4-1982.
"Order of the Court on 3-12-1981:
Issue show cause notice on SLP returnable on 4-1-1982, on
the question as to whether the High Court in disposing of
c
D
the appeal of the petitioners was acting in administrative
capacity or as a Tribunal or as High Court. There will be
interim injunction restraining the respondents from evictE
ing petitioner No. 2 from Government accommodation
held by him on the condition that the said petitioner continue~ to P,ay re~i pr oompensation at hitherto charged,
pending notke."
"Order of the Court on 4.1.1982:
F
Spe9ial le;we petjtion to be heard on the question whether
the High Court in disposing of the ~ppeal pf the petitioners
was 11ctiμg in an administrative capacity qnder Article 235
or iis I\ Tribunal or as the High Court. 'fhe special leave
petition tp be he~rd on 9.2.1982 on this question. Stay to
contiqμe !ill then."
G
"Orderofthr Courton2.4.1982:
Special leave granted. Printing of records and filing of
statement of case dispensed with. Security dispensed with.
Appeal will be heard on present papers on the preliminary
issue as to whether the High Court in disposal of appeal
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SUPREME COURT REPORTS
[1987] 2 S.C.R.
was acting in administrative capacity under Article 235 or
as Tribunal or as a l{igh Court and the circumstances in
which the appeal was maintained, if so. Hearing o: appeal
wiUbe.fixed on second Tuesday in July 1982 pre-emptorily
subject to ovemight's part heard." •
B From the above o. 1ers it is clear that the question that is to be decided
in this appeal is whether an appeal under Article 136 lies to this Court
from the order under challenge. That being so, it is necessary to consider the nature of the appeal before the High Ccrurt and the rules
governing that appeal, before discussing the questions of law raised by
the appeirantY counsel with reference to various authorities of this
C Court, to contend that article 136 was attracted.
D
E
G
4. The appointment of the ministerial officers of the District
Courts and Courts of Small Causes and their suspension and removal
are provided under Section 35 of the Punjab Courts Act, 1918. That
Section reads ·as follows:
·
( "35{1) The ministerial officers of the District Courts and
Courts of Small Causes shall be appointed and.may be
suspended or removed by the Judges of those Courts respectively.
(2) The ministerial officers of all Courts controlled by a
District Court, other than Courts of Small Causes, shall be
appointed, and may be suspended or removed by the District Court.
(3) Every appointment under this section shall be subject
to such rules ai; the High Court may prescribe in this
behalf, and in dealing with any matter under this Section,
· a Judge of a Court of Small Causes shall act subject to the
control of the District Court.
( 4) Any order passed by a District Judge under this sec;
tion shall be subject to the control of the High Court."
. '5. The High Court framed rules under this section for the subor-
---dinate services attached to or controlled by District Courts. Tiiese rules
apply to subordinate services attached to Civil Courts other than the
High Court, namely to ministerial and menial establishment of District
H and Sessions Judge, Sub-Judge and Courts of Small Causes. Chapter
DEVSINGJI v. PUNJAB&HARYANAHIGHCOURTIKHALID,J.I 1013
18-A of the rules is the one relevant for our purpose. A close study of A
·~
the scheme and the various provisions of Chapter 18-A would make it
abundantly clear that the appointments, promotions, punishments etc .
•
of the ministerial officials _of the Courts subordinate to the High Court,
;
were fully within the powers of the District and Sessions Judge subject
to the control of the High Court. Chapter 18-A is captioned 'control'.
B
Though there were changes effected by notifications issued by the
.. J,
State of Punjab regarding appointments, promotions in other services,
after the coming into force of the Government of India Act, 1935, it is
epoug!! to note for our purpose that the appointment, promotion and
;..._-(
punishment qf m,jμist.erial qfficials jn the .pistric! or other Civil Courts
continued to be governed by the rules in Chapter 18-A of the High
Court Rules and Orders.
c
\
6. Control in chapter 18-A is the same as control under Article
235 of the Constitution of India. Articles 233, 234 and 235 of the Constitution of India deal with the High Courts' control over the subordinate judiciary. Article 227 deals with the power of superintendence
D
over all Courts by the High Court. Its predecessor section in the
Government of India Act, 1935 was Section 224 which dealt with
administrative functions of the High Court. Article 233 deals with the
appointment of District Judges and Article 234 with the recruitment of
.; ~
persons other than the District Judges to the judicial service. Article
235 deals with the control over subordinate courts and the control
under this Article is wider than the control under the corresponding
E
provision of the Government of India Act. For our purpose, it is
"
sufficient to note that Chapter 18-A contains provisions relating to the
I )-
control of the High Court. over the subordinate judiciary.
......
7. For the purpose of this appeal, we are concerned only with
--~
Rules IX and X of the rules in Chapter 18-A. Rule IX deals ~th F
punishment. We extract the entire section since it would be profitable
to have a correct look at this section.
"IX- Punishment-(1) The following penalties may for
g,ood and sufficient reasons be imposed upon members of
G
t'1.e miqisterial staff:-
:~
(j) ci:n&μre,
(ii) Fine of an amount not exceeding one month's salary
for misconduct or neglect in the performance of
duties,
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c
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1014
SUPREME COURT REPORTS
[1987] 2 S.C.R.
(iii) Recovery from _Pay of the whole or part of any
pecuniary loss caused to Government by negligence
or breach of orders,
·
(iv) Withholding of increments or promotion inclwfr .:• .
stoppage at efficiency bar,
..
(v) Suspension,
(vi) Removal, and
(vii) Dismissal.·
(2)(a) Any-o.f ihe above penalties may be inflicted by the
Disirict Judge on the ministerial officers of his own Court of
any Court subordinate to him other than a Court of Small
Causes, and on the menials of his own Court.
'
_ '(b) The Judge of a Court of Small Causes may inflict
any of the above penalties on the ministerial. officers or
menials of his own Court.
(c) The District Judge may, with the previous sanction of the High Court, delegate to any Subordinate Judge
the power to inflict penalties given in clause (a) to be exercised by the Subordinate Judge in any specified portion of
the district subject to the control of the District Court.
Ncite:- This delegation has been made to the Senior Sub-Judge, 1st
Class, in each district in regard to the process-serving establishment of
all Courts in the district except that of the District Judge's Court and
the Court of the Judge, Small Causes, Lahore, Amritsar and Delhi.
( d) Any Subordinate Judge may fine, in an amount not
exceeding one month's salary, any ministerial officer of his
own Court for misconduct or neglect in the performance of
his duties.
(e) The Senior Subordinate Judge may inflict any of the
above penalties on menials of his own Court or the Courts
of other Subordinate Judges in the same district."
'>__,In Sub-Rule (1), eight penalties are categorised. Sub-Rule (2)
enables the District Judge to inflict any of the penalties mentioned in
Sub-Rule (I). Rule IX(2)(c) enables the District Judge, with the previH ous sanction of the High Court, to delegate to any Subordinate Judge
, "i·
.___.).·_
DEV SINGH v. PUNJAB & HARY ANA HIGH COURT (KHALID, J.( 1015
the power to inflict _penalties given in clause (a). Then comes the
A
important section that deals with appeals i.e. Rule X. We think it
useful to extract the Rule in full.
"X. Appeals.-(1) The District Judge may on appeal or
otherwise reverse or modify any order made under rule
IX(2) by any Court under his control including a Court of B
Small Causes, and his order shall be final:
Provided that nothing in this rule shall preclude the
High Court from altering where it deems fit any such appellate order of a District Judge on pf!tition by an aggrieved
person or otherwise:
c
Provided further that the District Judge shall not
enhance any punishment but should, if he considers
enhancement desirable, refer the case to the High Court for
orders.
(2) Appeals against penalties inflicted by a District
Judge shall lie to the High Court in the following cases
only:-
D
(a) Penalties mentioned in Rule IX(iii) to (viii) in
respect of ministerial servants, holding permaE
nent and pensionable posts;
·
(b) Orders of substantive appointment by,promotion
or otherwise to a permanent and pensionable
post the maximum pay of which is Rs. 75 or more
permensem;
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( c) Orders of temporary appointment which is to last
more than three months or has in fact lasted more
than three months in respect of posts the
maximum pay of which is Rs. 75 or more per
mensem.
(3) Persons appealing to the High Court under this
rule shall do so by petition. Such petition, accompanied by
a copy of the order complained against, shall be presented
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to the District Judge who passed the order within one
month of the date of such order (the period between the
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SUPREME COURT REPORTS
[1987] 2 S.C.R.
date of application for the copy and the date on which it is
supplied being excluded). The District Judge will forward
the petition to the Registrar of the High Court without
unnecessary delay, and in forwarding the same he will be at
liberty to record any remarks which he may wish to make
concerning any matter stated in the petition.
After reading the petition, the High Court may
>---
either-
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(a) Summarily reject it without hearing the peti·
!
tioner;
(b) refer it to the District Judge for report and on
receipt of such report reject the petition without
hearing the petitioner; or
( c) hear the petitioner, and in cases where other
persons are held to be concerned in the subject of
the petition, such other person in open Court.
Nothing in these rules shall debar the High Court or a
District Judge, from altering, if deemed fit, any order of
punishment or appointment not provided for above which
may be passed by a District Judge, Senior Subordinate
Judge or the Judge of a Small Causes Court in respect of
niinisterial or menial establishment when an aggrieved
person petitions or otherwise. District and Sessions Judges
should not, therefore, withhold any petition addressed to
the High Court whether an appeal lies to it in the case or
not under these rules. In a case in which no appeal lies the
District and Sessions Judge should forward it without any
comments and relevant documents unless he wishes to do
so or is so required by the High Court.
( 4) Petitioners are forbidden to attend personally at
the High Court unless summoned to do so. Orders on their
petitions will be communicated to them through the Dis·
trict Judge concerned.
(5) In order that a dismissed official may be able to
exercise his right of appeal, the charge against him should
be reduced to writing, his defence should either be taken
in, or reduced to writing and the decision on such defence
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DEV SINGH v. PUNJAB & HARYANA HIGH COURT [KHALID, J.] 1017
should also be in writing. The record of the charge, defence
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and decision should in all cases be such as to furnish sufficient information to the appellate authority to whom the
dismissed official may prefer an appeal.
(6) Establishment orders, in which an appeal lies lo
the High Court as a matter of right, should state briefly the
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claims of the persons appointe.fl as well as those of their
seniors, if any, who are considered· unfit for the appointments in question, and where the order of seniority has not
been followed the reasons for departure from it should be
stated."
8. Rule X(l) deals with the powers of the District Judge to c
,\reverse or modify any order made under Rule IX(2) passed by any
Court under his control. This sub-section contains two provisos. The
first proviso gives the High Court an absolute power to alter when it
deems fit any order passed by the District Judge in appeal when an
aggrieved person moves the High Court or even suo moto. The second
proviso restricts the powers of the District Judge to enhance any
punishment imposed and makes it subject to the orders of the High
Court when such a case is referred to the High Court for orders. Rule
D
;
-~ X(2) deals with appeals against penalties inflicted by District Judge as
in the case on hand. This section provides that appeals shall lie to the
High Court from orders imposing penalties by the District Judge, but
not in all cases. Appeals lie only against orders imposing penalties
mentioned in Rule IX(iii) to IX( viii). In other words, an appeal does
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j- not lie when t!te District Judge passes an order imposing a penalty of
censure or of fine of not more than one month's salary for misconduct
or neglect in the performance of duties.
~
9. We are not concerned here with the orders mentioned in Rule
X(2)(b) and (c). Sub-rule (3) of Rule X deals with the procedure in
filing appeals to the High Court. It states that appeals shall be by a
petition. It obligates presentation of the petition to the District Judge
who passed the order within the time prescribed therein. The District
Judge is directed to forward the petition to the Registrar of the High
Court without unnecessary delay. The District Judge is given powers
to record his remarks which he may wish to make concerning any
matter stated in the petition.
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10. A reading of this sub-rule makes it abundantly clear that the
appeal to be heard by the High Court is something which it has to do in
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[ 1987] 2 S.C.R.
A exercise of its powers of control over the subordinate courts on the
administrative side. The appeal .has to be by a petition. It.is to be
routed through the District Judge who sends it to the Registrar of the
High Court. These are the procedural formalities which normally
govern appeals preferred before the High Court, on the administrative
B side. The permission given to the authority who imposes penalty to
record his own remarks which he wishes to make concerning his own
order is further proof of the fact that what the High Court has to
consider is not a matter on the judicial side but one in its power of
control and superintendence over the subordinate courts. Appeals
under the general law have their own procedure, which is different
from the procedure detailed for the appeals under these rules of the
C deciding authority forwarding the appeal through the proper channel
to the controlling authority and of the freedom of the deciding authority to give its own remarks over and above the order already passed.
This procedure robs the appeal to the High Court of the characteristics
of the normal appeal culminating in judicial orders. The matter will be
D further clear when we look at the procedure that is to be followed by
the High Court in disposing of the appeals contained in this subsection itself.
11. Rule X(3) enables the High Court to summarily reject the
appeal without hearing the petitioner or refer it to the District Judge
E for report and on receipt of such report reject the petition without
hearing the petitioner; secondly to hear the petitioner, and in cases
where other persons are held to be concerned in the subject of the
petition, such other person in open court. The procedure contained in
this rule of hearing the petition is not similar to the procedure followed in regular judicial proceedings. Under these rules it is not
F obligatory for the High Court to hear the petitioner. It can go into the
papers and reject it summarily without giving the petitioner 'an
opportunity to be heard. It can also refer it to the District Judge for
report. The second method of disposal of this petition is to get a report
from the District Judge and on receipt of such a report to dismiss it
without hearing the petitionet and thirdly to give a hearing to the
G petitioner and also those who will be affected by the disposal of the
petition. The manner of disposal of the petition under this rule makes
it abundantly clear that this petition which the appellants call an
appeal is not strictly a judicial proceeding involving a !is between two
adversaries and the decision thereon is not a judicial decision. It has all
the trappings of an administrative proceeding and an administrative
H decision.
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DEV SINGH v. PUNJAB & HARYANA HIGH COURT [KHALID, J.] 1019
Sub·clause (4} gives further insight into the nature of the appeal.
It reads:
"(4) Petitioners are forbidden to attend personally at the
High Court unless summoned to do so. Orders on their
petitions will be communicated to them through the District
Judge concerned."
This again marks a complete departure from the normal judicial proceeding before a court. The petitioners are forbidden to attend
personally at the High Court. They can do so only when summoned
to do so. In a judicial proceeding, the party has a right to appear
personally or through his counsel. Here that right is denied to him.
This denial also robs the appeal of its character of a judicial proceeding. Orders passed by the High Court on such petitions will be communicated to the parties through the District Judge concerned.
12. A close study of these rules leaves no doubt in our mind that
in deciding the appeal under Rule X, the High Court exercises only a
supervisory administrative control and does not act as a Tribunal disposing of an appeal involving a lis between two rival parties and arriving at a judicial decision. As indicated above Rule X is in Chapter
18-A which deals with control. This gives the administrative shade to
the proceeding under this rule. Section 35(3) contains the rule making
power. Section 35( 4) stipulates that any order passed by the District
Judge under this section shall be subject to the control of the High
Court, thus fortifying our conclusion that the proceedings under this
section and the decisions made thereunder are not judicial in nature.
This appeal can be disposed of with this conclusion and it is not necessary to refer to the various authorities cited before us. However, for
the completeness of the judgment, we think it proper to briefly refer
to the various authorities cited before us, for and against ihe position
that the High Court, while deciding this appeal, acted as a Tribunal
whose order can be challenged before this Court under Article 136 of
the Constitution, though in our view the decisions cited dealt with
situations different from the one we are dealing here.
13. In Durga Shankar Mehta v. Thakur Raghuraj Singh and
Others, [ 1955] 1 SCR 267 a Constitution Bench of this Court was
considering the jurisdiction of the Supreme Court under Article 136 of
the Constitution in an election case. It is not necessary for our purpose·
to state the facts of the case here. It was contended that the special
jurisdiction that was conferred in. the Election Tribunal could be inA
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119811 i s.t.R..
A voked by an aggrieved party only by meilll~ of an election petition,
whose decision was final and conchlsive and that therefore a challenge
to the order of the Tribunal Ullder Article 136 of the Constitution was
not maintainable. To support this contention Article 329 and the nonobstante clause therein were called in to aid. This Court repelled that
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contention as untenable though apparently attractive. This Court held
that the expression 'Tribunal' as used ·in Article 136 did not mean snlile"
thing as 'Court', but included in its ambit all adjudicating bodies
proivded they were constituted by the State and were invested with
the judicial as distinguished from purely administrative or executive ftme•
tions. This decision has been pressed into service by the appeilants'
counsel to contend that the High Court in the case on hand having
been constituted by the State and invested with judicial power was a
Tribunal and therefore, its decision could be examined by this Court
under Article 136. In our view, this decision cannot help the appellants
because this decision clearly held that if the power exercised was
administrative in nature it would exclude such a Tribunal from the
ambit of Article 136.
14. In Bachhittar Singh v. The State of Punjab, [1962) Suppl. 3
SCR 713, an employee in PEPSU was dismissed by the Revenue Secretary. Against this order he preferred an appeal to the State Government. The Revenue Minister, PEPSU felt that the order of dismissal
was too harsh and instead, he should be reverted and made an
E
endorsement to that effect on the file, but no written order was served
on the employee. After the merger of PEPSU with Punjab, the
Revenue Minister, Punjab, sent the file to the Chief Minister for his
advice. The Chief Minister passed an order confirming the order of
dismissal and the order was duly communicated to the employee. This
order was challenged by him before the High Court. It was contended
F
before the High Court by the State of Punjab, with success, that the
order of dismissal started with proceedings beginning with the enquiry
and culminating in punishment and that the first part involved a decision on evidence while the second part of taking action an administrative one. This dichotomy was ingeniously put forward before this
Court to render the appeal not maintainable by contending that the
G order of dismissal was not a judicial order. This Court repelled that
contention. This Court held that departmental proceedings taken
against a Government servant were not divisible in the sense in which
the High Court understood it. There is just one continuous proceeding though there are two stages in it. Mudholkar, J. speaking for the
H Constitution Bench observed thus in repelling this contention:
!-.
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m!V §IHOil v. PUNJAB I< HARY ANA HIGH COURT [KHALID, J.) 1021
" ..... Thete ls just one continuous proceedings though
A
there are two stages in it. The first is coming to a conclusion
on the evidence as to whether the charges alleged against
the Government servant are established or not and the
second is reached only if it is found. that they are so
established. That stage deals with the action to be taken
against the Government servant concerned. The High
B
Court accepts that the first stage is a judicial proceeding
and indeed it must be so because charges have to be
framed, notice has to be given and the person concerned
has to be given an opportunity of being heard. Even so far
as the second stage is concerned, Article 311(2) of the Constitution requires a notice to be given to the person conC
cerned as also an opportunity of being heard. Therefore,
this stage of the proceeding is no less judicial than ihe
earlier one. Consequently any action decided to be taken
against a Government servant found guilty of misconduct is
a judicial order and as such it cannot be varied at the will of
the authority who is empowered to impose the punishment.
D
Indeed, the very object with which notice is required to be
given on the question of punishment is to ensure that it will
be such as would be justified upon the char,ses established
and upon the other attendant circumstances of the case. It
is thus wholly erroneous to characterise the'taking of action
against a person found guilty of any charge at a departmenE
tal enquiry as an administrative order."
i
This judgment will not help us in this case. It only lays down a general
principle that a departmental enquiry and a decision is one continuous
process consisting of the enquiry part and the decision making part,
both the aspects of which are judicial in nature, and the decisions :taken
F
therein are in exercise of judicial power.
· · · ·
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.
. .
.
.
15. The counsel for the appellants placed stro~g reiiance on the :'
decision of a Constitution Bench in the case· of AssoCiated Cement ·
Companies Ltd. v. P.N.