# DR. P. S. MALIK v. HIGH COURT OF DELHI & ANR

- **Citation:** [2019] 12 S.C.R. 957
- **Court:** Supreme Court of India
- **Decided:** 2019-08-21
- **Bench:** Ashok Bhushan, Navin Sinha
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-p-s-malik-v-high-court-of-delhi-anr-33170
- **Pages:** 23

## Headnote

Constitution of India - Arts.233 and 235 - Petitioner was
working as Additional District Judge at Dwarka, New Delhi -Written
complaints submitted against the petitioner, to the Chief Justice of
the High Court of Delhi, by a lady Junior Judicial Assistant who
worked as Ahlmad in the petitioner's Court from 18.05.2015 to
18.05.2016 alleging sexual harassment at work place- On
13.07.2016, the petitioner was placed under suspension - Internal
Complaints Committee constituted - Preliminary Report submitted
to the Full Court of the High Court opining that disciplinary inquiry
be held against the petitioner - Full Court resolved to hold the
inquiry - Inquiry Report dated 09.03.2018 submitted by the
Committee - Petitioner has filed the present writ petition inter alia
submitting that there being an Inquiry Report by Internal Complaints
Committee as envisaged by ss.11 and 13 of the 2013 Act, the High
Court could not have decided to initiate the inquiry or suspend the
petitioner - Held: Petitioner is member of Judicial Service for which
disciplinary authority is the High Court - The word "control"
occurring in Art.235 means not only the general superintendence
of the working of the Courts but includes the disciplinary control
of the judicial officers, i.e., the district judges and judges
subordinate to him - High Court can initiate disciplinary proceedings
against judicial officers - Power to suspend the judicial officer
vests in the High Court- Under the 2013 Act, complaint mechanism
and mechanism for constitution of the Internal Complaints
Committee, mechanism to inquire the complaint, are all for protection
of dignity and welfare of women at workplace - Provisions of ss.11,
13 in no manner affect the control of the High Court u/Art.235 with
respect to judicial officers- Full Court of the High Court is in no
manner precluded from initiating disciplinary inquiry against the
petitioner and placing him under suspension on being satisfied that
[2019] 12 S.C.R. 957
957
A
B
C
D
E
F
G
H
958
SUPREME COURT REPORTS
[2019] 12 S.C.R.
sufficient material existed - No error in the decision of the Full
Court dated 13.07.2016 - Further, submission of the petitioner that
due to non-supply of Preliminary Inquiry Report dated 05.11.2016,
the proceedings have been vitiated, not accepted - Only limited
issues as pressed by the petitioner have been considered -
Disciplinary proceedings against the petitioner still underway - It
is open for the petitioner to raise all pleas of facts and law before
the appropriate authority - Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 -
Chapters II, IV & V - ss.4, 11 and 13 - All India Services (Discipline
and Appeal) Rules, 1969 - r.8.
Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 - ss.11, 13 and 18 - Complaint
of sexual harassment at work place made against the petitioner,
judicial officer in Delhi Higher Judicial Services, by an employee
in his Court - Present writ petition filed by the petitioner inter alia
submitting that copy of the Preliminary Inquiry Report not being
supplied to him, he has been denied right to appeal - Held:
Preliminary Inquiry Report dated 05.11.2016 did not contain any
findings on allegations made against the petitioner - It only opined
that inquiry should be held - Even u/s.11(1) in the second proviso,
the only contemplation is to make available a copy of the findings -
Thus, the report in which there are no findings, parties are not entitled
to have the copy - Inquiry Report referred in s.13 is the Report
which has been submitted by Internal Complaints Committee after
completion of the inquiry - Inquiry Report by Internal Complaints
Committee dated 09.03.2018 was admittedly supplied to the
petitioner- Right of appeal given against the recommendation made
u/s.13(2) or (3) are appealable u/s.18- Thus, the right of appeal is
given to an aggrieved person only when report is submitted u/s.13
to the employer -

## Text

_Characters 0–39,916 of 51,876. This is a partial read: ask again with offset=39916 for what follows._

A
B
C
D
E
F
G
H
957
 DR. P. S. MALIK
v.
HIGH COURT OF DELHI & ANR.
(Writ Petition (Civil) No.705 of 2018)
AUGUST 21, 2019
[ASHOK BHUSHAN AND NAVIN SINHA, JJ.]
Constitution of India - Arts.233 and 235 - Petitioner was
working as Additional District Judge at Dwarka, New Delhi -Written
complaints submitted against the petitioner, to the Chief Justice of
the High Court of Delhi, by a lady Junior Judicial Assistant who
worked as Ahlmad in the petitioner's Court from 18.05.2015 to
18.05.2016 alleging sexual harassment at work place- On
13.07.2016, the petitioner was placed under suspension - Internal
Complaints Committee constituted - Preliminary Report submitted
to the Full Court of the High Court opining that disciplinary inquiry
be held against the petitioner - Full Court resolved to hold the
inquiry - Inquiry Report dated 09.03.2018 submitted by the
Committee - Petitioner has filed the present writ petition inter alia
submitting that there being an Inquiry Report by Internal Complaints
Committee as envisaged by ss.11 and 13 of the 2013 Act, the High
Court could not have decided to initiate the inquiry or suspend the
petitioner - Held: Petitioner is member of Judicial Service for which
disciplinary authority is the High Court - The word "control"
occurring in Art.235 means not only the general superintendence
of the working of the Courts but includes the disciplinary control
of the judicial officers, i.e., the district judges and judges
subordinate to him - High Court can initiate disciplinary proceedings
against judicial officers - Power to suspend the judicial officer
vests in the High Court- Under the 2013 Act, complaint mechanism
and mechanism for constitution of the Internal Complaints
Committee, mechanism to inquire the complaint, are all for protection
of dignity and welfare of women at workplace - Provisions of ss.11,
13 in no manner affect the control of the High Court u/Art.235 with
respect to judicial officers- Full Court of the High Court is in no
manner precluded from initiating disciplinary inquiry against the
petitioner and placing him under suspension on being satisfied that
[2019] 12 S.C.R. 957
957
A
B
C
D
E
F
G
H
958
SUPREME COURT REPORTS
[2019] 12 S.C.R.
sufficient material existed - No error in the decision of the Full
Court dated 13.07.2016 - Further, submission of the petitioner that
due to non-supply of Preliminary Inquiry Report dated 05.11.2016,
the proceedings have been vitiated, not accepted - Only limited
issues as pressed by the petitioner have been considered -
Disciplinary proceedings against the petitioner still underway - It
is open for the petitioner to raise all pleas of facts and law before
the appropriate authority - Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013 -
Chapters II, IV & V - ss.4, 11 and 13 - All India Services (Discipline
and Appeal) Rules, 1969 - r.8.
Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 - ss.11, 13 and 18 - Complaint
of sexual harassment at work place made against the petitioner,
judicial officer in Delhi Higher Judicial Services, by an employee
in his Court - Present writ petition filed by the petitioner inter alia
submitting that copy of the Preliminary Inquiry Report not being
supplied to him, he has been denied right to appeal - Held:
Preliminary Inquiry Report dated 05.11.2016 did not contain any
findings on allegations made against the petitioner - It only opined
that inquiry should be held - Even u/s.11(1) in the second proviso,
the only contemplation is to make available a copy of the findings -
Thus, the report in which there are no findings, parties are not entitled
to have the copy - Inquiry Report referred in s.13 is the Report
which has been submitted by Internal Complaints Committee after
completion of the inquiry - Inquiry Report by Internal Complaints
Committee dated 09.03.2018 was admittedly supplied to the
petitioner- Right of appeal given against the recommendation made
u/s.13(2) or (3) are appealable u/s.18- Thus, the right of appeal is
given to an aggrieved person only when report is submitted u/s.13
to the employer - No prejudice caused to the petitioner by nonsupply of Report dated 05.11.2016.
Dismissing the writ petition, the Court
HELD: 1.1 Part VI of the Constitution of India deals with
"The States". Chapter VI contains heading "Subordinate Courts".
Articles 233 and 235 of the Constitution of India refer to two
distinct powers. The first is power of appointment, posting and
promotion of District Judges and second is power of control over
A
B
C
D
E
F
G
H
959
Judicial Officers of the State. The word "control" occurring in
Article 235 means not only the general superintendence of the
working of the Courts but includes the disciplinary control of the
judicial officers, i.e., the district judges and judges subordinate
to him. The word "control" used in Article 235 has been held by
Supreme Court to be disciplinary control. Disciplinary authority
with regard to judicial officers is the High Court and it is the
High Court, which can initiate the disciplinary proceedings against
judicial officers. The High Court can also suspend a member of
the judiciary. Insofar as dismissal or removal is concerned, the
said orders are required to be passed by the Governor on the
recommendation of the High Court. The fact that the orders of
dismissal or removal are issued by the approval of the Governor
in no manner denude the disciplinary control of the High Court.
[Paras 9, 14 and 16] [967-D-E; 971-A; 972-G-H]
1.2 The petitioner in the present case is a member of Judicial
Service for which disciplinary authority is the High Court. The
Sexual Harassment of Women at Workplace(Prevention,
Prohibition and Redressal) Act, 2013 was to provide protection
against sexual harassment of women at workplace and for the
prevention and redressal of complaints of sexual harassment and
for matters connected therewith or incidental thereto. Chapter
II of Act, 2013 deals with constitution of Internal Complaints
Committee. Chapter IV deals with complaint. In Chapter IV, one
of the sections is Section 11, which deals with inquiry into
complaint. Chapter V deals with inquiry into complaint and Section
13 deals with inquiry report. The Act, 2013 is a parliamentary
legislation, the preamble of which outlines the necessity of
legislation. [Paras 18-21] [974-A-C; 975-B; 976-B-C]
1.3 The provisions of the Act, complaint mechanism and
mechanism for constitution of the Internal Complaints Committee,
mechanism to inquire the complaint are all for protection of dignity
and welfare of women at workplace. The provisions of Sections
11 and 13 in no manner affect the control of the High Court under
Article 235, which it has with respect to judicial officers. The
power to suspend the judicial officer vests in the High Court.
The Full Court of the High court is in no manner precluded from
initiating disciplinary inquiry against the petitioner and placing
 DR. P. S. MALIK v. HIGH COURT OF DELHI
A
B
C
D
E
F
G
H
960
SUPREME COURT REPORTS
[2019] 12 S.C.R.
the petitioner under suspension on being satisfied that sufficient
material existed. The High Court in its meeting dated 19.07.2016
has resolved to send the complaint of the employee to the Internal
Complaints Committee and the Internal Complaints Committee
having opined that inquiry need to be held, further steps were
taken in accordance with Act, 2013. There is no error in the
decision of the Full Court dated 13.07.2016 to suspend the
petitioner and initiate the inquiry proceedings against the
petitioner. Preliminary Inquiry Report dated 05.11.2016 did not
contain any findings on allegations made against the petitioner,
Preliminary Inquiry Report only opined that inquiry should be
held. The Inquiry Report, which has been referred to in Section
13 is an Inquiry Report, which has been submitted by Internal
Complaints Committee after completion of the inquiry. In the
present case, the Inquiry Report by Internal Complaints
Committee is dated 09.03.2018, which has been admittedly
supplied to the petitioner, the right of appeal given against the
recommendation made under sub-section(2) or sub-section(3) of
Section 13 are appealable under Section 18 of the Act. Thus, the
right of appeal is given to an aggrieved person only when report
is submitted under Section 13 to the employer. Section 13(3)
contemplates the report of Internal Complaints Committee when
it "arrives at the conclusion that the allegation against the
respondent has been proved". It is not the case of any of the
parties that the report of the Committee dated 05.11.2016 is the
report where allegation against the petitioner has been proved.
Even under Section 11(1) in the second proviso, the only
contemplation is to make available a copy of the findings. Thus,
when the report in which there are no findings, parties are not
entitled to have the copy. High Court in its counter affidavit has
pleaded that the Report dated 05.11.2016 was not a report
containing any findings against the petitioner rather only opinion
was expressed that disciplinary inquiry be initiated against the
petitioner. No prejudice can be held to be caused to the petitioner
by non-supply of the Preliminary Inquiry Report dated 05.11.2016.
The copy of memo of charge dated 23.02.2017 has been brought
on the record, which also clearly indicates that the charge memo
does not refer to Preliminary Inquiry Report dated 05.11.2016.
Thus, no prejudice can be said to have been caused to the
A
B
C
D
E
F
G
H
961
petitioner by non-supply of Report dated 05.11.2016. The
submission of the counsel for the petitioner that due to non-supply
of Preliminary Inquiry Report dated 05.11.2016, the proceedings
have been vitiated, not accepted. With regard to charge memo
dated 23.02.2017, inquiry conducted by Internal Complaints
Committee culminating into Report dated 09.03.2018, it is open
for the petitioner to raise all pleas of facts and law before the
appropriate authority. This Court has only considered limited
issues as pressed by the petitioner. Apart from above, all
questions and issues are left open to both the parties.[Paras 22,
24- 26] [976-D-F; 978-A, E-H; 979-A-C]
State of West Bengal and Another v. Nripendra Nath
Bagchi AIR 1966 SC 447 : [1966] 1 SCR 771; Registrar
(Admn.) High Court of Orissa, Cuttack v. Sisir Kanta
Satapathy (Dead) by LRs. and Another (1999) 7 SCC
725 : [1999] 2 Suppl. SCR 473 - followed.
State of Tamil Nadu Rep. by Secretary to Govt.(Home)
v. Promod Kumar IPS and Another AIR 2018 SC 4060
- held inapplicable.
Baradakanta Mishra v. High Court of Orissa and
Another (1976) 3 SCC 327 : [1976] Suppl. SCR 561;
Rajendra Singh Verma (Dead) Through LRs. and Others
v. Lieutenant Governor (NCT of Delhi) and Others
(2011) 10 SCC 1 : [2011] 12 SCR 496 - relied on.
Chief Justice of Andhra Pradesh and Others v. L.V.A.
Dixitulu and Others, (1979) 2 SCC 34 : [1979] 1 SCR
26 - referred to.
Case Law Reference
[1966] 1 SCR 771 followed
Para 9
[1976] Suppl. SCR 561 relied on
Para 11
[1999] 2 Suppl.SCR 473 followed
Para 12
[2011] 12 SCR 496
 relied on
Para 13
[1979] 1 SCR 26
 referred to
Para 15
AIR 2018 SC 4060
 held inapplicable
Para 17
 DR. P. S. MALIK v. HIGH COURT OF DELHI
A
B
C
D
E
F
G
H
962
SUPREME COURT REPORTS
[2019] 12 S.C.R.
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 705 of 2018
Under Article 32 of The Constitution of India
Varinder Kumar Sharma, Ms. Parul Sharma, Yugal Kishore
Prasad, Advs. for the Petitioner.
P. S. Narsimha, Sr. Adv., Ms. Binu Tamta, Dhruv Tamta, Rahul
G. Tanwani, Ms. Sindoora VNL, Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. The petitioner, A Judicial Officer in Delhi Higher Judicial
Services, against whom disciplinary proceedings alleging sexual
harassment is underway, has filed this writ petition under Article 32 of
the Constitution of India praying for following reliefs:-
"a. issue a writ, order or direction in the nature of certiorari
quashing the resolution of Respondent No.1, the Full Court of
Delhi High Court dated 13.07.2016 inToto, cited in the report
dated 09.03.2018 (Annexure-P-12) and also all subsequent
resolutions passed by Full Court of Delhi High Court dated
19.07.2016, 16.11.2016, 23.02.2017, 06.07.2017 or on any other
date in relation to this enquiry, cited in the report dated
09.03.2018 (Annexure-P- 12) as the same are arbitrary, without
any jurisdiction and violative of the provisions of Sexual
Harassment of Women at Workplace Prevention, Prohibition
and Redressal) Act of 2013, Art. 14 and Art. 21 of the
Constitution of India;
b. issue a writ, order or direction in the nature of certiorari
quashing the proceedings of ICC the Respondent number 2
as held by it under the Provisions of the Act of 2013.
c. issue a writ, order or direction in the nature of certiorari quashing
the Charge sheet dated 23.02.2017 (Annexure-P-7) issued
by the Respondent No.1 on the recommendation of the
Respondent No.2;
d. issue a writ, order or direction in the nature of certiorari quashing
the report dated 9.3.2018 (Annexure-P-12) of the ICC, the
A
B
C
D
E
F
G
H
963
2nd Respondent herein along with all the proceedings of the
Respondents leading thereto;
e. issue a writ, order or direction in the nature of certiorari
quashing the letter of e Hon'ble Delhi High Court dated
15.05.2018 (Annexure-P-11) issued by Respondent No.1; and
f. pass any other writ, order or direction as this Hon'ble Court
deems fit to grant in the interest of justice."
2. Brief facts necessary for deciding this writ petition are:-
2.1 The petitioner has been working as Additional District Judge
at Dwarka, New Delhi. On 05.07.2016, a written complaint
was submitted against the petitioner by a lady, Junior Judicial
Assistant (hereinafter referred to as "employee") alleging
sexual harassment at work place. The complaint was
addressed to the Chief Justice of High Court of Delhi. The
Junior Judicial Assistant was working as Ahlmad in the Court
of the petitioner w.e.f. 18.05.2015. She continued to work in
that capacity till 18.05.2016. Another complaint dated
11.07.2016 was submitted by the employee to the Chief
Justice. Complaint submitted by the employee came for
consideration before the Full Court of the High Court on
13.07.2016, which resolved as under:-
i. The Judicial Officer be placed under suspension with
immediate effect pending disciplinary proceeding
contemplated against him.
ii. The Registrar General will forward the complaint dated
05.07.2016 to SHO of the concerned Police Station for
appropriate action in accordance with law under intimation
to this Court.
iii. Registry to take steps in anticipation of the confirmation of
the Minutes.
2.2 The Full Court of the Delhi High Court by further resolution
dated 19.07.2016 resolved to constitute an Internal Complaints
Committee consisting of five members to inquire into the
allegation of sexual harassment made against the petitioner.
The petitioner as well as the employee appeared before the
 DR. P. S. MALIK v. HIGH COURT OF DELHI
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
964
SUPREME COURT REPORTS
[2019] 12 S.C.R.
Internal Complaints Committee (hereinafter referred to as
"Committee"). The petitioner was suspended by order dated
13.07.2016 pending disciplinary proceedings. The employee
further submitted a detailed statement dated 28.07.2016 before
the Committee. The petitioner submitted his reply to the
Committee on 02.09.2016. On 19.09.2016, the Committee
interacted with both the parties separately. On 05.11.2016,
the Committee submitted a Preliminary Report to the Full
Court. By its Report dated 05.11.2016, the Committee opined
that a disciplinary inquiry be held against the petitioner. Full
Court of the High Court in its meeting dated 16.11.2016
resolved that the disciplinary proceedings for major penalty
under Rule 8 of All India Services (Discipline and Appeal)
Rules, 1969 be initiated against the petitioner.
2.3 The memo of charges dated 22/23.02.2017 was given to the
petitioner containing, article of charges and statement of
imputations. The petitioner submitted written statement on
11.03.2017. The Full Court on 06.07.2017 considered the
written statement of defence dated 11.03.2017 of petitioner
and resolved to hold the inquiry. The Full Court resolved for
constituting a Committee in terms of Section 4 of the Sexual
Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013 (hereinafter referred to as "Act,
2013") chaired by Hon'ble Ms. Justice Hima Kohli, who was
appointed as the Inquiring Authority.
2.4 The inquiry before the Inquiring Committee proceeded and
Report dated 09.03.2018 has been submitted by the Internal
Complaints Committee. The Inquiry Report submitted by the
Committee was placed before the Full Court in its meeting
held on 25.04.2018 which resolved to forward the Inquiry
Report to the petitioner and to ask him to submit his written
submissions. Full Court in its meeting dated 01.08.2018 also
resolved to supply certified copies of Full Court Meeting
Minutes dated 13.07.2016, 19.07.2016 and 16.11.2016 to the
petitioner. High Court also resolved that since the Preliminary
Inquiry Report dated 05.11.2016 has not been relied upon,
the same be not supplied to the petitioner. After receipt of
the Inquiry Report, the petitioner has filed this writ petition on
08.06.2018.
A
B
C
D
E
F
G
H
965
3. We have heard Shri Varinder Kumar Sharma, learned counsel
for the petitioner and Shri P.S. Narsimha, learned senior counsel for the
respondent.
4. Learned counsel for the petitioner contends that the Full Court
of the High Court on receiving the complaint dated 05.07.2016 did not
follow the procedure given in Act, 2013. It is submitted that Full Court
ought to have handed over the complaint to the Internal Complaints
Committee for inquiry. Full Court erred in issuing three punitive directions
on 13.07.2016 against the petitioner. The order dated 13.07.2016 was
premature being before an inquiry or opportunity to the petitioner of
being heard. Further, they were passed by an authority, which had no
legal competence to pass those directions under the Delhi Higher Judicial
Service Rules, 1970 and the All India Services Rules. There has been
blatant violation of Act, 2013 in the petitioner's case vitiating the entire
procedure. The Committee after conducting the inquiry has submitted a
Report dated 05.11.2016, which report was required to be given to the
petitioner as per Act, 2013 but was denied to the petitioner. The
Committee having not found proved the allegation against the petitioner,
Full Court ought not to have proceeded to impose penalty against the
petitioner. The respondents have wrongly assumed that they are the
disciplinary authority of the petitioner whereas under Rule 26A of the
Delhi Higher Judicial Service Rules, 1970 (hereinafter referred to as
"Rules, 1970"), the High Court has been debarred from having any right
over the members of the service in matters relating to major penalties.
The charge memo dated 23.02.2017 was issued without even information
to the disciplinary authority, i.e., the Governor.
5. Shri Narsimha, learned senior counsel appearing for the
respondents submits that High Court having control over judicial officers
under Article 235 of the Constitution, it did not lack jurisdiction in placing
the petitioner under suspension and directing for a regular disciplinary
inquiry. Inquiry having conducted by the Committee, which after holding
full-fledged inquiry, giving full opportunity to the petitioner has submitted
a Report dated 09.03.2018. The Inquiry Report dated 09.03.2018 was
served on the petitioner by letter dated 16.05.2018, where petitioner
was asked to submit his written representation or statement within one
month, which has not yet been done. It is submitted that in view of the
fact that the petitioner has filed this petition in this Court and matter
being pending due to deference to this Hon'ble Court, no further steps
 DR. P. S. MALIK v. HIGH COURT OF DELHI
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
966
SUPREME COURT REPORTS
[2019] 12 S.C.R.
have been taken in the inquiry. It is submitted that the Report dated
05.11.2016 was a Preliminary Report submitted by the Committee giving
opinion that the disciplinary inquiry be held, the said report being a
Preliminary Inquiry Report, it was not necessary to serve such report to
the petitioner. The Inquiry Report conducted as per Section 11 of the
Act, 2013 and as per Section 13, the copy of the report has been duly
served on the petitioner. Further, the Preliminary Inquiry Report dated
05.11.2016 was not taken into consideration for framing charges against
the petitioner and hence the High Court did not give a copy of the said
report to the petitioner.
6. We have heard the learned counsel for the parties and have
perused the records.
7. At very outset, we indicated to the learned counsel for the
petitioner that the disciplinary proceedings against the petitioner being
still underway, having not yet taken any final shape, most of the issues,
which are sought to be raised by the writ petitioner in this writ petition
can very well be canvassed and pressed before in the disciplinary
proceedings. We indicated that any expression of opinion by this Court
on issues, which are relevant and material in the disciplinary inquiry may
prejudice the parties.
8. Learned counsel for the petitioner specifically submitted that
this Court may consider those submissions, which go to the very root of
the matter specially non-compliance of the provisions of Act, 2013. We
have already extracted the reliefs claimed in the writ petition. Claims in
the writ petition are very wide, which include quashing the proceedings
of Internal Complaints Committee as well as Charge Sheet dated
23.02.2017 and the Report dated 09.03.2018. We are of the view that
the petitioner having still opportunity in the disciplinary proceedings to
challenge the proceedings of the Internal Complaints Committee, the
charge sheet as well as the Inquiry Report dated 09.03.2018, we deem
it appropriate not to enter into above issues leaving it open to the petitioner
to raise all submissions and pleas before the appropriate authority. In
this writ petition, we, however, proceed to examine only few limited
issues, which has been pressed by the petitioner. The only issues, which
we proceed to consider are:-
(i) Whether the High Court is a disciplinary authority of the
petitioner, competent to initiate the disciplinary proceedings
A
B
C
D
E
F
G
H
967
against the petitioner and suspend him as per Delhi Higher
Judicial Service Rules, 1970 and All India Services (Discipline
and Appeal) Rules, 1969?
(ii) Whether the decision of the Full Court on 13.07.2016 initiating
enquiry against the petitioner and placing him under suspension
was beyond jurisdiction?
(iii) Whether the Preliminary Inquiry Report submitted by Internal
Complaints Committee dated 05.11.2016 ought to have been
supplied to the petitioner and non-supply of such Preliminary
Inquiry Report dated 05.11.2016 vitiated the entire
proceedings?
Issue Nos. 1 and 2
9. Issue Nos.1 and 2 being connected are taken together. Part
VI of the Constitution of India deals with "The States". Chapter VI
contains heading "Subordinate Courts". Articles 233 and 235 of the
Constitution of India refers to two distinct powers. The first is power of
appointment, posting and promotion of District Judges and second is
power of control over Judicial Officers of the State. The word "control"
occurring in Article 235 means not only the general superintendence of
the working of the Courts but includes the disciplinary control of the
judicial officers, i.e., the district judges and judges subordinate to him.
The word "control" used in Article 235 has been held by this court to be
disciplinary control. A Constitution Bench of this Court in State of West
Bengal and Another Vs. Nripendra Nath Bagchi, AIR 1966 SC
447 had occasion to consider the nature of the control vested in the
High Court in Article 235 of the Constitution over district judges. In
paragraph No.13 following was held:-
"15. We do not accept this construction. The word "control" is
not defined in the Constitution at all. In Part XIV which deals
with Services under the Union and the States the words "disciplinary
control" or "disciplinary jurisdiction" have not at all been used. It
is not to be thought that disciplinary jurisdiction of services is not
contemplated. In the context the word "control" must, in our
judgment, include disciplinary jurisdiction. Indeed, the word may
be said to be used as a term of art because the Civil Services
(Classification Control and Appeal) Rules used the word "control"
and the only rules which can legitimately come under the word
 DR. P. S. MALIK v. HIGH COURT OF DELHI
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
968
SUPREME COURT REPORTS
[2019] 12 S.C.R.
"control" are the Disciplinary Rules. Further, as we have already
shown, the history which lies behind the enactment of these Articles
indicate that "control" was vested in the High Court to effectuate
a purpose, namely, the securing of the independence of the
subordinate judiciary and unless it included disciplinary control as
well the very object would be frustrated. This aid to construction
is admissible because to find out the meaning of a law, recourse
may legitimately be had to the prior state of the law, the evil sought
to be removed and the process by which the law was evolved.
The word "control", as we have seen, was used for the first time
in the Constitution and it is accompanied by the word "vest" which
is a strong word. It shows that the High Court is made the sole
custodian of the control over the judiciary. Control, therefore, is
not merely the power to arrange the day to day working of the
court but contemplates disciplinary jurisdiction over the presiding
Judge................................."
10. The Constitution Bench further held that under Article 235 of
the Constitution, High Court can hold enquiries, impose punishments other
than dismissal or removal. In paragraph No. 18, following has been
held:-
"18. There is, therefore, nothing in Article 311 which compels the
conclusion that the High Court is ousted of the jurisdiction to hold
the enquiry if Article 235 vested such a power in it. In our judgment,
the control which is vested in the High Court is a complete control
subject only to the power of the Governor in the matter of
appointment (including dismissal and removal) and posting and
promotion of District Judges. Within the exercise of the control
vested in the High Court, the High Court can hold enquiries, impose
punishments other than dismissal or removal, subject however to
the conditions of service, and a right of appeal if granted by the
conditions of service, and to the giving of an opportunity of showing
cause as required by clause (2) of Article 311 unless such
opportunity is dispensed with by the Governor acting under the
provisos (b) and (c) to that clause. The High Court alone could
have held the enquiry in this case. To hold otherwise will be to
reverse the policy which has moved determinedly in this direction."
11. To the same effect is another Three Judge Bench judgment of
this Court is Baradakanta Mishra Vs. High Court of Orissa and
A
B
C
D
E
F
G
H
969
Another, (1976) 3 SCC 327 where in paragraph No.20, following
was laid down:-
"20. The scope of Article 235 has been examined by this Court in
several decisions. The important decisions are State of West
Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447; High
Court of Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704;
High Court of Punjab and Haryana v. State of Haryana (In
the matter of N.S. Rao), (1975) 1 SCC 843. The effect of the
decisions is this. The word "control" as used in Article 235 includes
disciplinary control over District Judges and judges inferior to the
post of District Judge. This control is vested in the High Court to
effectuate the purpose of securing independence of the
subordinate judiciary and unless it included disciplinary control as
well the very object would be frustrated. The word "control" is
accompanied by the word "vest" which shows that the High Court
is made the sole custodian of the control over the judiciary. Control
is not merely the power to arrange the day-to-day working of the
court but contemplates disciplinary jurisdiction on the presiding
judge. The word "control" includes something in addition to the
mere superintendence of these courts. The control is over the
conduct and discipline of judges. The inclusion of a right of appeal
against the orders of the High Court in the conditions of service
indicates an order passed in disciplinary jurisdiction. The word
"deal" in Article 235 also indicates that the control is over
disciplinary and not mere administrative jurisdiction. The control
which is vested in the High Court is complete control subject only
to the power of the Governor in the manner of appointment
including initial posting and promotion of District Judges and
dismissal, removal, reduction in rank of District Judges. Within
the exercise of the control vested in the High Court, the High
Court can hold enquiries, impose punishments other than dismissal
or removal subject however to the conditions of service to a right
of appeal if granted by the conditions of service, and to the giving
of an opportunity of showing cause as required by clause (2) of
Article 311 unless such an opportunity is dispensed with by the
Governor acting under the provisos (b) and (c) to that clause.
The High Court alone could make enquiries into disciplinary
conduct."
 DR. P. S. MALIK v. HIGH COURT OF DELHI
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
970
SUPREME COURT REPORTS
[2019] 12 S.C.R.
12. Another Constitution Bench in Registrar (Admn.), High
Court of Orissa, Cuttack Vs. Sisir Kanta Satapathy (Dead) by
Lrs. and Another, (1999) 7 SCC 725 after reviewing all earlier
judgments, laid down following in paragraph No.16:-
"16. 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 case, (1976) 2 SCC 977 and Rajiah case, (1988) 3
SCC 211)."
13. We may also refer to another judgment of this Court in
Rajendra Singh Verma (Dead) through LRs. and Others Vs.
Lieutenant Governor (NCT of Delhi) and Others, (2011) 10 SCC
1. This Court in the above case had occasion to consider control of
Article 235 over the judicial officers of NCT of Delhi. This Court after
elaborating the control of the High Court with reference to judicial officers
of NCT Delhi had laid down that High Court alone is the sole authority
competent to initiate disciplinary proceedings against Subordinate Judicial
Officers or to impose various punishments. The contentions raised before
the Court based on Article 239AA(4) of the Constitution that the Scheme
in NCT Delhi is different was rejected. Following was laid down in
paragraph No.136:-
"136. Reliance on Article 239-AA(4) is entirely out of place so
far as the High Court is concerned, dealing with the judicial officers.
To give any other interpretation to Article 239-AA(4) will be to
defeat the supreme object underlying Article 235 of the Constitution,
specially intended for protection of the judicial officers and
necessarily independence of the subordinate judiciary. It is
absolutely clear that the Governor cannot take the aid and advice
of his Council of Ministers in the case of judicial officers and
accept its advice and act according to it. There is no room for any
outside body between the Governor and the High Court. Therefore,
this Court does not find any substance in this contention also and
the same is rejected."
A
B
C
D
E
F
G
H
971
14. In the above case, it has been clearly and categorically laid
down that disciplinary authority with regard to judicial officers is the
High Court and it is the High Court, which can initiate the disciplinary
proceedings against judicial officers. Although, with regard to dismissal,
removal or reduction in rank or termination of services of judicial officers,
the High Court becomes the recommending authority and it is the
Governor, who is to issue the orders.
15. Learned counsel for the petitioner has placed reliance on a
Constitution Bench judgment of this Court in Chief Justice of Andhra
Pradesh and Others Vs. L.V.A. Dixitulu and Others, (1979) 2
SCC 34. The above case was a case of employees of a High Court.
This Court had occasion to interpret the scope of Article 235. In paragraph
40 of the judgment, few incidents of control vested in the High Court
were enumerated. Paragraph 40 is as follows:
"40. The interpretation and scope of Article 235 has been the
subject of several decisions of this Court. The position crystallised
by these decisions is that the control over the subordinate judiciary
vested in the High Court under Article 235 is exclusive in nature,
comprehensive in extent and effective in operation. It comprehends
a wide variety of matters. Among others, it includes:
(a) (i) Disciplinary jurisdiction and a complete control subject
only to the power of the Governor in the matter of appointment,
dismissal, removal, reduction in rank of District Judges, and
initial posting and promotion to the cadre of District Judges. In
the exercise of this control, the High Court can hold inquiries
against a member of the subordinate judiciary, impose
punishment other than dismissal or removal, subject, however,
to the conditions of service, and a right of appeal, if any, granted
thereby and to the giving of an opportunity of showing cause
as required by Article 311(2).
(ii) In Article 235, the word 'control' is accompanied by the
word "vest" which shows that the High Court alone is made
the sole custodian of the control over the judiciary. The control
vested in the High Court, being exclusive, and not dual, an
inquiry into the conduct of a member of judiciary can be held
by the High Court alone and no other authority. (State of West
Bengal v. Nripendra Nath Bagchi (supra); Shamsher Singh v.
 DR. P. S. MALIK v. HIGH COURT OF DELHI
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
972
SUPREME COURT REPORTS
[2019] 12 S.C.R.
State of Punjab (1974) 2 SCC 831; Punjab and Haryana High
Court v. State of Haryana (sub nom Narendra Singh Rao,(1975)
1 SCC 831).
(iii) Suspension from service of a member of the judiciary, with
a view to hold a disciplinary inquiry.
(b)Transfers, promotions and confirmation of such promotions
of persons holding posts in the judicial service, inferior to that
of District Judge. (State of Assam v. S.N. Sen, (1971) 2 SCC
899, State of Assam v. Kuneswar Saikia, (1969) 3 SCC 505).
(c) Transfers of District Judges [State of Assam v. Ranga
Muhammad (supra); Chandra Mouleshwar v. Patna High Court
(supra)].
(d) Recall of District Judges posted on ex-cadre posts or on
deputation on administrated posts. (State of Orissa v. Sudhansu
Sekhar Misra, AIR 1968 SC 647).
(e) Award of Selection grade to the members of the judicial
service, including District Judges it being their further promotion
after their initial appointment to the cadre. (State of Assam v.
Kuseswar Saikia (supra).
(f) Confirmation of District Judges, after their initial appointment
or promotion by the Governor to the cadre of District Judges
under Article 233, on probation or officiating basis. [Punjab &
Haryana High Court v. State of Haryana (supra)].
(g) Premature or compulsory retirement of Judges of the District
Court and of Subordinate Courts (State of U.P. v. Batuk Deo
Pati Tripathi and Anr. (supra)."
16. In the above case also, this Court held that the disciplinary
jurisdiction vests in the High Court which can hold inquiries against a
member of the subordinate judiciary, impose punishment other than
dismissal or removal. The High Court can also suspend a member of the
judiciary. Insofar as dismissal or removal is concerned, the said orders
are required to be passed by the Governor on the recommendation of
the High Court. The fact that the orders of dismissal or removal are
issued by the approval of the Governor in no manner denude the
disciplinary control of the High Court.
A
B
C
D
E
F
G
H
973
17. Another judgment relied on by the learned counsel for the
petitioner is State of Tamil Nadu Rep. by Secretary to Govt.(Home)
Vs. Promod Kumar IPS and Another, AIR 2018 SC 4060. The
above was a case of the member of Indian Police Service. This Court
had occasion to consider the provisions of All India Services (Discipline
and Appeal) Rules, 1969 in the context of member of Indian Police Service.
Learned counsel for the petitioner has placed reliance on paragraphs 18
and 19, which are to the following effect:
"18. Rule 8(4) of the All India Service (Discipline and Appeal)
Rules, 1969 also mandates that the disciplinary authority shall
"draw up or cause to be drawn up" the charge memo. We see no
reason to take a view different from the one taken by this Court
in B.V. Gopinath (AIR 2014 SC 88)(supra). We also see no
substance in the submission made by the Senior Counsel for the
State that the said judgment needs reconsideration. Assuming that
Mr. Giri is right in his submission that the initiation of disciplinary
proceedings and issuance of charge memo are at the same stage,
the mandatory requirement of Rule 8 which provides for the charge
memo to be drawn by the disciplinary authority cannot be ignored.
We reject the submission on behalf of the Appellant that Gopinath's
case can be distinguished on facts. We are not in agreement with
the contention of the Appellant that the business Rules and standing
orders of the State of Tamil Nadu are quite different from the
office orders and circulars issued by Union of India which formed
the basis of the judgment in Gopinath's case. A close reading of
the said judgment would disclose that reliance on the office note
was only in addition to the interpretation of the Rule.
19. It is also settled law that if the Rule requires something to be
done in a particular manner it should be done either in the same
manner or not at all- Taylor v. Taylor (1875) 1 Ch. D. 426, 431. In
view of the mandatory requirement of Rule 8(4) and the charge
memo being drawn up or cause to be drawn up by the disciplinary
authority is not complied with, we are of the considered opinion
that there is no reason to interfere with the judgment of the High
Court on this issue. The only addition we would like to make is to
give liberty to the disciplinary authority to issue a charge memo
afresh after taking approval from the disciplinary authority."
 DR. P. S. MALIK v. HIGH COURT OF DELHI
[ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
974
SUPREME COURT REPORTS
[2019] 12 S.C.R.
18. In the above case, charge memo was not drawn by the
disciplinary authority, hence, this Court approved the decision of the High
Court quashing charge-sheet. The above case is not applicable in the
present case. The petitioner in the present case is a member of Judicial
Service for which disciplinary authority is the High Court.
19. The submission, which has been pressed by the petitioner is
that in view of Act, 2013 there being an Inquiry Report by Internal
Complaints Committee as envisaged by Sections 11 and 13, the High
Court could not have taken a decision to initiate the inquiry or to suspend
the petitioner.