# YOGINA TH D. BAG DE v. STATE OF MAHARASHTRA AND ANR

- **Citation:** [1999] Supp. 2 S.C.R. 490
- **Court:** Supreme Court of India
- **Decided:** 1999-09-16
- **Bench:** S. Saghir Ahmad, K. Venkataswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/yogina-th-d-bag-de-v-state-of-maharashtra-and-anr-16843
- **Pages:** 31

## Headnote

Service Law :
Maharashtra Civil Service (Discipline & Appeal) Rules, 1979-Rule
c 9(2)
Dismissal-Judicial Officer-Charged for indulging in corrupt
practices-Departmental enquiry-Enquiry Officer's finding that charges were
not established-Disciplinary Committee of High Court disagreeing with the
D findings of Enquiry Officer, recommending punishment of dismissal-Show
cause notice to delinquent officer-No opportunity of hearing provided before
final decision-Validity of-Held, it is obligatory on the Disciplinary
Committee to afford opportunity of hearing before reversing the finding of
Enquiry Officer-Requirement of hearing in consonance with the principles
of natural justice has to be read into the Rule, which does not specifically
E provide for such opportunity-Principles of natural justice-Violation ofOrder of dismissal quashed-Constitution of India, 1950, Article 311(2).
Departmental Enquiry-Pendency and conclusion of-Submission of
enquiry report-Effect of-Held, mere submission of findings to the Disciplinary
Authority does not bring about the closure of enquiry proceedings-Enquiry
F proceedings would be pending till the findings were considered and final
decision is taken in the matter.
Constitution of India
Article 235-Control of High Court over subordinate courts-Vesting
G of-Whether to be exercised by Full Court consisting of all the sitting Judges
or through a Committee consisting of some Judges? Judicial OfficerDisciplinary Committee of High Court recommending dismissal-Validity
of-Held, in view of Constitution Bench's decision in Batuk Deo 's case,
Disciplinary Committee competent to recommend dismissal of an officerH Suggestion to Chief Justice of the High Court to adopt a Resolution for wider
490
"f!t.'
Y.D. BAGDEv. STATE
491
consultation, with other Judges regarding imposition of major penalties like A
dismissal or removal of Judicial Officers.
·
Article 235-Control of High Court over subordinate courts-Duty to
protect the officer of subordinate court-Held, it is imperative for the High
Court to protect its honest Judicial Officers from unscrupulous litigants and B
lawyers.
Articles 226 and 32-Judicial review-Reappraisal of the findings of
Enquiry Officer or Disciplinary Authority-Scope and extent of
Appellant, an officer of subordinate judiciary, was charged for indulging C
in corrupt practices. The charges were framed on the basis of a complaint
made by an accused whose trial was pending before the appellant Departmental
Enquiry was initiated against the appellant. Enquiry Officer held that the
charges against the appellant were not established and, therefore,
recommended his reinstatement. However, the Disciplinary Committee of the
High Court, disagreeing with findings of Enquiry Officer, issued show cause D
notice to the appellant for imposing the punishment of dismissal. The
Disciplinary Committee without giving opportunity of hearing to the appellant,
recommended his dismissal from service. Appellant unsuccessfully challenged
his dismissal before the High Court. Hence the present appeal.
On behalf of appellant it was contended that before recording its reasons
for disagreeing with the findings of the Enquiry Officer and issuing a show
cause notice in which the punishment of dismissal was proposed, the appellant
should have been given an opportunity of hearing and since this was not done,
the principles of natural justice were violated with the result that the decision
E
of the Disciplinary Committee of the High Court stood vitiated; the decision F
to impose the punishment of dismissal could not have been taken by
Disciplinary Committee as the jurisdiction in that regard vested in the High
Court which means the Full Court comprising of all the sitting Judges and
they alone could have deliberated upon the matter and taken a decision
whether or not the appellant was liable to be dismissed from service; that G
there was no evidence in support of the charges that the appellant had
demanded money from the accused a

## Text

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A
YOGINA TH D. BAG DE
v.
STATE OF MAHARASHTRA AND ANR.
SEPTEMBER 16, 1999
B
[S. SAGHIR AHMAD AND K. VENKATASWAMI, JJ.]
Service Law :
Maharashtra Civil Service (Discipline & Appeal) Rules, 1979-Rule
c 9(2)
Dismissal-Judicial Officer-Charged for indulging in corrupt
practices-Departmental enquiry-Enquiry Officer's finding that charges were
not established-Disciplinary Committee of High Court disagreeing with the
D findings of Enquiry Officer, recommending punishment of dismissal-Show
cause notice to delinquent officer-No opportunity of hearing provided before
final decision-Validity of-Held, it is obligatory on the Disciplinary
Committee to afford opportunity of hearing before reversing the finding of
Enquiry Officer-Requirement of hearing in consonance with the principles
of natural justice has to be read into the Rule, which does not specifically
E provide for such opportunity-Principles of natural justice-Violation ofOrder of dismissal quashed-Constitution of India, 1950, Article 311(2).
Departmental Enquiry-Pendency and conclusion of-Submission of
enquiry report-Effect of-Held, mere submission of findings to the Disciplinary
Authority does not bring about the closure of enquiry proceedings-Enquiry
F proceedings would be pending till the findings were considered and final
decision is taken in the matter.
Constitution of India
Article 235-Control of High Court over subordinate courts-Vesting
G of-Whether to be exercised by Full Court consisting of all the sitting Judges
or through a Committee consisting of some Judges? Judicial OfficerDisciplinary Committee of High Court recommending dismissal-Validity
of-Held, in view of Constitution Bench's decision in Batuk Deo 's case,
Disciplinary Committee competent to recommend dismissal of an officerH Suggestion to Chief Justice of the High Court to adopt a Resolution for wider
490
"f!t.'
Y.D. BAGDEv. STATE
491
consultation, with other Judges regarding imposition of major penalties like A
dismissal or removal of Judicial Officers.
·
Article 235-Control of High Court over subordinate courts-Duty to
protect the officer of subordinate court-Held, it is imperative for the High
Court to protect its honest Judicial Officers from unscrupulous litigants and B
lawyers.
Articles 226 and 32-Judicial review-Reappraisal of the findings of
Enquiry Officer or Disciplinary Authority-Scope and extent of
Appellant, an officer of subordinate judiciary, was charged for indulging C
in corrupt practices. The charges were framed on the basis of a complaint
made by an accused whose trial was pending before the appellant Departmental
Enquiry was initiated against the appellant. Enquiry Officer held that the
charges against the appellant were not established and, therefore,
recommended his reinstatement. However, the Disciplinary Committee of the
High Court, disagreeing with findings of Enquiry Officer, issued show cause D
notice to the appellant for imposing the punishment of dismissal. The
Disciplinary Committee without giving opportunity of hearing to the appellant,
recommended his dismissal from service. Appellant unsuccessfully challenged
his dismissal before the High Court. Hence the present appeal.
On behalf of appellant it was contended that before recording its reasons
for disagreeing with the findings of the Enquiry Officer and issuing a show
cause notice in which the punishment of dismissal was proposed, the appellant
should have been given an opportunity of hearing and since this was not done,
the principles of natural justice were violated with the result that the decision
E
of the Disciplinary Committee of the High Court stood vitiated; the decision F
to impose the punishment of dismissal could not have been taken by
Disciplinary Committee as the jurisdiction in that regard vested in the High
Court which means the Full Court comprising of all the sitting Judges and
they alone could have deliberated upon the matter and taken a decision
whether or not the appellant was liable to be dismissed from service; that G
there was no evidence in support of the charges that the appellant had
demanded money from the accused and that the Enquiry Officer was justified
i~ recording the finding that the charges were not established.
Allowing the appeal and setting aside the order of High Court, the
~rt
H
492
SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.
A
Held: 1.1. The action of Disciplinary Committee in not giving an
opportunity of hearing to the appellant before taking a final decision that the
charges levelled against him were proved amounts to violation of principles
of natural justice. The order of dismissal is quashed and appellant reinstated ,
in service with all consequential benefits. [520-B-E]
B
Punjab National Bank & Ors. v. Kunj Behari Mishra, [1998] 7 SCC
84 =AIR (1998) SC 2713, relied on.
State of Assam v. Bimal Kumar Pandit, [1964] 2 SCR 1 =AIR (1963)
SC 1612; Institute of Chartered Accountants of India v. L.K. Ratna & Ors.,
[1986] 4 SCC 537; Managing Director, ECIL, Hyderabad & Ors. v.
C B.Karunakar & Ors., [1993) 4 SCC 727 and Ram Kishan v. Union of India,
[1995] 6 sec 157, referred to.
·D
State Bank of India v. S.S. Kosha/, [1994] Supp. 2 SCC 468 and State
of Rajasthan v. MC. Saxena, [1998)3 SCC 385, held inapplicable.
1.2. Rule 9(2) of the Maharashtra Civil Service (Discipline & Appeal)
Rules, 1979 enables the Disciplinary Authority to disagree with the findings
of the Inquiring Authority on any article of charge. The said Rule does not
specifically provide that before recording its own findings, the Disciplinary
Authority will give an opportunity of hearing to a delinquent officer. But the
E requirement of "hearing" in consonance with the principles of natural
justice provided in Article 311(2) of the Constitution has to be read into Rule
9(2) and it has to be held that before the Disciplinary Authority finally
disagrees with the findings of the Inquiring Authority, it would give an
opportunity of hearing to the delinquent officer. The Disciplinary Authority
also has to communicate to the delinquent officer the "tentative" reasons for
F disagreeing with the finding of the Inquiring Authority. Thus, a delinquent
employee has the right of hearing not only during the enquiry proceedings
conducted by the Enquiry Officer into the charges levelled against him but
also at the stage at which those findings are considered by the Disciplinary
Authority and the latter, namely, the Disciplinary Authority forms a tentative
G opinion that it does not agree with the findings recorded by the Enquiry
Officer. Mere submission of findings to the Disciplinary Authority does not
bring about the closure of the enquiry proceedings. The enquiry proceedings
w.ould come to an end only when the findings have been considered by the
Disciplinary Authority and the charges are either held to be not proved or
found to be proved and in that event punishment is inflicted upon the delinquent
H That being so, the "right to be heard" would be available to the delinquent
.,
-
Y.D. BAGDEv. STATE
493
up to the final stage. This right being a constitutional right of the employee A
cannot be taken away by any legislative enactment or service rule including
Rules made under Article 309 of the Constitution.
(509-F-G-H; 510-A; 511-E-H; 512-AJ
1.3. In the instant case, the Enquiry Officer had recorded the findings
that the charges were not proved. These findings were' submitted to the B
Disciplinary Committee which disagreed with those findings and issued a
notice to the appellant requiring him to show cause why he should not be
dismissed from service. The Disciplinary Committee, in fact, had acted in
accordance with the statutory provisions contained in Rule 9(4)(i)(a)&(b),
and called upon to show cause against the proposed punishment of dismissal. C
But he was requiring to show cause only against the punishment proposed
by the Disciplinary Committee which had already taken a final decision that
the charges against the appellant were proved. It was not indicated to him
that the Disciplinary Committee had come only to a "tentative" decision and
that he could show cause against that too. It was for this reason that the reply
submitted by the appellant failed to find favour with the Disciplinary D
Committee. [512-C-D; 513-H; 514-AI
2. The Disciplinary Committee was not justified in disagreeing with
the findings recorded by the Enquiry Officer that the charges levelled against
the appellant were not established. There is inconsistency in the complainant's
story with regard to the place at which the demand was allegedly made by E
the appellant. Further, the trap laid by Anti-Corruption Bureau at the behest
of the complainant also failed. The statements of defence witnesses were not
considered by the Disciplinary Committee and instead relied upon the statement
of the complainant alone. This factor in itself was sufficient to vitiate the
findings recorded by the Disciplinary Committee contrary to the findings of
the Enquiry Officer. The Disciplinary Committee was not justified in going F
by surmises and conjectures rather than by the evidence on re-cord.
[519-C; 516-D-E-F-H]
3. Under Article 235 of the Constitution, the High Court has a duty
to protect the officers of the Subordinate Judiciary from unscrupulous litigants G
and lawyers.· In the instant case, the accused had taken the Court, where the
two Sessions Trials were pending against him, for a ride. He had adopted
similar tactics in the Court of Sessions Judge and again in the Court of
Addi. Distt. and Sessions Judge, where these two cases were transferred and
yet again in the court of the appellant where these Sessions Trials came to
be ultimately transferred. The presiding officer of the Court cannot act as H
494
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
A fugitives. They have also to face sometimes quarrelsome, unscrupulous and
cantankerous litigants but they have to face them boldly without deviating
from the right path. They are not expected to be overawed by such litigants
~
or fall to their evil designs. [518-G-C-D; FJ
!shwar Chand Jain 11• High Court of Punjab & Haryana & Anr., AIR
B (1988) SC 1395, relied on.
4. If the findings are perverse and are not supported by evidence on
record or the findings recorded at the domestic trial are such to which no
reasonable person would have reached, it would be open to the High Court
as also to this Court to interfere in the matter. Thus, it cannot be accepted
C that the High Court or this Court cannot, in exercise of its jurisdiction
under Article 226 or 32 of the Constitution, act as the Appellate Authority
in the domestic enquiry or trial and it is not open to this Court to reappraise
the evidence. [519-E-D)
Ku/deep Singh v. The Commissioner of Police & Ors., JT (1998) 8 SC
D 603 = [1999) 2 SCC 10; Nand Kishore v: State of Bihar, AIR (1978) SC 1277
= (1978) 3 SCC 366 = [1978) 3 SCR 708; State of Andhra Pradesh v. Sree
Rama Rao, AIR (1963) SC 1723 = [1964) 3 SCR 25; Central Bank of India
v. Prakesh Chand Jain, AIR (1969) SC 983; Bharat Iron Works v.Bhagubhai
Balubhai Patel & Ors., AIR (1976)SC 98 = [1976) 2 SCR 280 = [1976)1
SCC 518 and Rajinder Kumar Kindra v. Delhi Admn. thro SecretaTy, (Labour)
E & Ors., AIR (1984) SC 1805 = [1985) 1 SCR 866 = 11984) 4 sec 635,
relied on.
5. The recommendation to dismiss the appellant made by the High
Court cannot be challenged on the ground that such recommendation was
made by the Disciplinary Committee and not by the Full Court comprising
F ofall the sitting Judges. However, constitution of Disciplinary Committee
with few Senior Judges permanently excludes other Judges, which is against
the concept of wider consulation which is inherent in the words "High
Court". Thus, it is suggested that the Chief Justice of High Court may adopt
a resolution permitting other Judges also to participate in the decision
G making process at least, the imposition of major penalties like dismissal or
removal of the judicial officers. [505-F-G; 506-B-C)
State of UP. v. Batuk Dea Pati Tripathi & Anr., [1988) 2 SCC 102,
followed.
Registrar, High Court of Madras, v. R. Rajiah, AIR (1998) SC 1388;
H Ffigh Court of Punjab & Haryana v. State of Haryana, l1975] 3 SCR 365;
i
,
Y.D. BAGDE v. STATE [S. SAGHIRAHMAD, J.]
495
Samsher Singh v. State of Punjab, [1975] 1 SCR 814; State of Haryana v. A
lnder Prakash Anand, AIR (1976) SC 1841 and B. Mishra v .. Orissa High
Court, [1976) 3 SCC 327, relied on.
Batuk Deo Pati Tripathi v. State of U.P. & Ors., (Civil Misc. Writ No.
3561 decided on 18.4.1977), disapproved.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15479 ~f
1996
From the Judgment and Order dated 21.6.96 of the Bombay High Court
in W.P. No. 3434 of 1993.
V.N. Ganpule, Vijay Thakre and R.S. Lambat for the Appellant.
Harish N. Salve and D.M. Nargolkar for the Respondents.
The Judgment of the Court was delivered by
S. SAGHIR AHMAD, J. The appellant has approached this Court against
the judgment and order dated 21.6.1996 passed by the Bombay High Court
which had dismissed the Writ Petition by which the appellant had challenged
B
c
D
the order dated 8.11.1993 (20. l l .1993) dismissing him from service after the
disciplinary proceedings in which it was found that the appellant was guilty E
of the charges framed against him.
The appellant was appointed as Civil Judge, Jr. Division, on l 8.2.1974
and was thereafter promoted as Civil Judge, Senior Division in August, 1983.
He was further promoted as Addi. District and Sessions Judge in September, F
1987.
In June, 1990, while the appellant was posted at Amravati, two Sessions
Trials No. 28 of 1982 and 37 of 1987, in which one Deepak Trimbakrao
Deshmukh, on whose complaint appellant was ultimately dismissed from
service, was involved as an accused. Both the cases related to a murder in G
which the appellant had refused long adjournments on the ground that the
matters were old. In July, 1990, the accused Deepak Trimbakrao Deshmukh·
filed a transfer petition before the Nagpur Bench of the Bombay High Court
for the transfer of the case from the appellant's court to some other court on
the ground that one Shri Patil, Advocate, who was opposed to Deepak
Trimbakrao Deshmukh, was very close to the appellant and, therefore, Deepak H
496
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
A Trimbakrao Deshmukh apprehended that he would not get justice from the
appellant's court. This was registered as Transfer Petition No. 701 of 1990. On
10th of August, 1990, the accused Deepak Trimbakrao Deshmukh filed another
Transfer Petition (No. 812 of 1990) on the allegation that his Advocate (Shri
Bapat) had assured him of his acquittal in the case, provided he would pay
B Rs. 20,000 to him as his fee. An interim order was passed in this case by which
the proceedings in the Sessions Trial were stayed. On 18th September, 1990,
however, Deepak Trimbakrao Deshmukh withdrew both the Transfer Petitions.
Thereafter, Deepak Trimbakrao Deshmukh made a complaint against the
appellant to the High Court as a result of which the appellant was placed
C under suspension by order dated 22nd April, 1992 which was served upon
the appellant on 27th April, 1992. Thereafter, through letter dated 22nd May,
1992, a chargesheet along with the statement of imputations, list of witnesses
and list of documents, proposed to be relied upon against the appellant, were
issued to the appellant. The following two charges were mentioned in the
chargesheet:
E
F
G
"1. That while you were working as 2nd Additional Sessions Judge,
Wardha, Sessions trial No.28/82 and 37/87 were pending before you
in which Deepak Trimbakrao Deshmukh was an accused. You had a
meeting with said accused at the residence of Dr. Naranje
Rashtrabhasha Prachar Samiti Road, Wardha on 23.11.90 when you
assured him of acquittal on payment of Rs.10,000/- in each case and
that you thereby indulged in corrupt practice amounting to gross
misconduct.
2. That on 18.12.1990 at about 8.00 P.M. at the residence of Dr.
Naranje, Rashtrabhasha Prachar Samiti Road, Wardha, you m.ade a
demand ofRs.10,000 from Shri Deepak Trimbakrao Deshmukh, resident
of Wardha, Taluka Arvi, District Wardha, as consideration for his
acquittal in Sessions Trial No.37/87 under Section 302 etc. l.P.C. and
that you thereby indulged in corrupt practice amounting to gross
misconduct."
The appellant filed his reply on 18th Jone, 1992 in which the charges
were denied and it was stated by the appellant that Deepak Trimbakrao
Deshmukh had made a false complaint against him so that his cases may not
be tried by the appellant. On a consideration of the reply submitted by the
appellant, the Disciplinary Authority, not being satisfied by the reply, decided
H to hold a departmental enquiry against the appellant and, therefore, by its
..
Y.D. BAGDE v. STATE [S. SAGHIR AHMAD, J.]
497
order dated 3rd August, 1992 appointed Mr. G .B. Asma, Joint District Jildge, A
Akola, as the Enquiry Officer.
After completion of enquiry, the Enquiry Officer submitted his report
dated 21st December, 1992 to the Disciplinary Authority. It was held by the
Enquiry Officer that the charges against the appellant were not established B
and, therefore, he recommended the reinstatement of the appellant. The
Disciplinary Committee of the High Court considered the report of the Enquiry
Officer and disagreeing with the findings of the Enquiry Officer held that the
charges against the appellant were proved. The Disciplinary Committee,
therefore, tentatively decided to impose the penalty of dismissal from service
upon the appellant. Accordingly, the appellant was called upon by a notice C
to show cause why the proposed penalty be not imposed upon him. A copy
of the reasons recorded by the Disciplinary Committee for not agreeing with
the findings submitted by the Enquiry Officer as also a copy of the Enquiry
Officer's report were sent to the appellant who filed his reply to the showcause notice. This reply was considered by the Disciplinary Authority, namely,
the High Court which decided to impose the major penalty of dismissal from D
service and accordingly recommended to the Government of Maharashtra that
the appellant be dismissed from service. Acting upon this recommendation,
the Government of Maharashtra, by order dated 8.11.1993, dismissed the
appellant from service.
The order of dismissal was challenged by the appellant by means of a
Writ Petition, filed under Article 226 of the Constitution, which was opposed
E
by the High Court on whose behalf Nilkanth Vishwanath Dabholkar, l/C,
Additional Registrar, High Cout, (Legal) Appellate Side, filed an affidavit
dated 7.6.1996 in opposition. The High Court, by the impugned judgment
dated 21st of June, I 996, dismissed the Writ Petition and it is in these F
circumstances that the present appeal has been filed in this Court by Special
Leave.
Learned counsel appearing on behalf of the appellant has raised several
contentions including that there was no evidence in support of the charges G
that the appellant had demanded Rs.10,000 in each of the two Sessions Trials·
pending in his court from the accused, namely, Deepak Trimbakrao Deshmukh,
for his acquittal and that the Enquiry Officer was justified in recording the
finding that the charges were not established. It was also contended that the
reasons on the basis of which the Disciplinary Committee of the High Court
disagreed with the findings recorded by the Enquiry Officer are wholly H
498
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
A erroneous and conjectural. It 'is contended that on the basis of the evidence
on record, no person could reasonably have come to the conclusion that the
payment of Rs. l 0,000 in each of the two Sessions Trials to the appellant by
Deepak Trimbakrao Deshmukh, was established. It is also contended that
before recording its reasons for disagreeing with the findings of the Enquiry
B Officer and issuing a show-cause notice in which the punishment of dismissal
was\Proposed, the appellant should have been given an opportunity of
hearing and since this was not done, the principles of natural justice were
violated with the result that the decision of the Disciplinary Committee of the
High Court stood vitiated and on the basis of that decision, no recommendation
could have been made to the State Government for dismissing the appellant
C from service nor could the State Government, acting on that recommendation,
legally pass the order of dismissal. The !earned counsel also contended that
the decision of the Disciplinary Committee of the High Court was wholly
contrary to the provisions contained in Article 235 of the Constitution under
which the control and supervision over the subordinate officers of the
subordinate judiciary vests in the High Court. It is contended that though the
D decision to hold the disciplinary enquiry could have been taken by the
Disciplinary Committee constituted by the High Court in pursuance of a
Resolution of the Full Court, the decision to impose the punishment of
dismissal could not have been taken by that Committee as the jurisdiction in
that regard vested in the High Court which means the Full Court comprising
E of all the sitting Judges and they alone could have deliberated upon the
matter and taken a decision whether or not the appellant was liable to be
dismissed from service.
It is contended that since the Enquiry Report was considered only by
the Disciplinary Committee which disagreed with the findings of the Enquiry
F Officer and came to its own conclusion that the charges against the appellant
were established and, therefore, he was liable to be dismissed from service
and since the decision of the Govemment was based on the recommendation
of the Disciplinary Committee, the order of dismissal ultimately passed by the
State Government on that recommendation cannot be sustained.
G
We will first de~! with the jurisdiction of the Disciplinary Committe~,
constituted by the High Court, to consider the report of the Enquiry Officer
and take a decision to impose the punishment of dismissal from service upon
the appellant.
This question has been disposed of by the High Court, before which
H it was raised, in the following words:-
-
Y.D. BAG DE v. STATE [S. SAGHIR AHMAD, J.]
499
"Equally there is no merit in the submission made by the Petitioner A
that the decision of the Disciplinary Committee to impose major penalty
of dismissal from service upon the Petitioner on the charges levelled
against the Petitioner being held proved was required to be rectified
by the Full Court, i.e., all the Judges of this Court. The challenge of
the Petitioner on this ground is no longer res integra. By the judgment B
delivered on 23rd June, 1992 by the Division Bench of this Court in
Writ Petition No.5847 of 1991 as also by the judgment delivered on
15th March, 1996 by another Division Bench of this Court in Writ
Petition No.649of1996 (R.W.Khan v. State of Maharashtra), similar
challenge as made in the present petition has been negatived. While
examining the question whether the decision taken is that of the High C
Gourt or not in view of Article 235 of the Constitution of India, the
Division Bench found that there is in the field Resolution dated 2nd
May, 1981 passed by the Full Court which lay down the manner and
regulates the procedure for administrative decisions on several
subjects and matters enumerated therein. Based upon this Resolution
of Full Court, the practice evolved in this court is that from time to D
time a Disciplinary Committee is appointed by the Chief Justice which
normally consists of Senior Judges and the decisions and
recommendations made by such Disciplinary Committee are considered
as decisions and recommendations of Full Court, i.e., all the Judges
of this Court. Accordingly, the decision taken by the Disciplinary E
Committee of this Court to dismiss the Petitioner from service is
nothing but the decision of the High Court itself. Hence, it was not
necessary to place the said decision for approval or rectification
before the meeting of all the Judges or Full Court."
The above extract shows that the High Court was of the opinion that F
if in a meeting of the Full Court a Resolution was adopted authorising the
Chief Justice to constitute a Di~ciplinary Committee and the Committee was
authorised to take a decision with regard to the punishment which would be
inflicted upon a delinquent officer of the subordinate judiciary, the decision
of that Committee would be treated to be a decision of the ·Full Court and,
therefore, there was no need to circulate the findings of the Disciplinary G
Committee to all the Judges of the High Court or to place the whole matter
before the Full Court.
We may consider the respective contentions on merits.
Article 235 of the Constitution provides as under:
H
500
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
A
B
"235. Control over subordinate courts.- The control over district courts ...
and courts subordinate thereto including the posting and promotion
of, and the grant of leave to, persons belonging to the judicial service
of a State and holding any post inferior to the post of district judge
shall be ,vested in the High Court, but nothing in this article shall be
construed as taking away from any such person any right of appeal
which he may under the law regulating the conditions of his service
or as authorising the High Court to deal w·ith him otherwise than in
accordance with the conditions of his service prescribed under such
law."
C
This Article contemplates control of the High Court over the subordinate
courts. Read with Articles 233 and 234, the word "control" used in Arti~le 235
would indicate that although the Appointing Authority of the District Judge
and officers other than District Judges is the Governor of the State, the words
·~control over district courts and courts subordinate thereto", which are words
of wide connotation, vest in the High Court other facets of service of those
D officers, namely, their confirmation on completion of the period of probation,
their postings, transfers and disciplinary matters including power to recommend
major punishments. Thus, the "control" vested in the High Court is complete
control subject only to the powers of the Governor in the matter of appointment,
initial posting and promotion to the posts of District Judges. For imposing
E major punishment, including the punishment of dismissal, removal or reduction
in rank, the High Court can, in exercise of its powers under Article 235 of the
Constitution, hold disciplinary proceedings and recommend the punishment
to be imposed on the delinquent to the Governor who alone would be
competent to impose such punishment having regard to the provisions of
Articles 233 and 234.
F
A controversy had erupted at one time whether the words "High Court"
used in Article 235 would mean all the Judges sitting together in a Full Court
meeting or merely a Committee of Judges appointed by the Chief Justice; in
other words, whether the Full Court comprising of all the sitting Judges of
G the Court can act through a Committee of Judges for purposes of
recommending the major punishment. A Full Bench ·of the Allahabad High
Court in Batuk Deo Pati Tripathi v. State of U.P. & Ors., (Civil Misc. Writ
No. 3561 decided on 18.4.1977) took the view that the words "High Court"
used in Article 235 meant the Full Court and not merely a Committee of Judges
appointed by the Chief Justice. This decision was reversed by a Constitution
H Bench of this Court in State of Uttar Pradesh v. Batuk Deo Pati Tripathi &
h
.-
-
-
Y.D. BAGDEv. STATE [S. SAGHIRAHMAD, J.]
Anr. [1978] 2 SCC 102. This Court observed as under:
501
"Having given our close and anxious consideration to that question,
we regret that we are unable to share the view of the majority of the
High Court Full Bench that by leaving the decision of the question
A
of the respondent's compulsory retirement to the Administrative
Committee, the Court had abdicated its constitutional function. B
According to the view of the majority, the act of the Court in allowing
the Administrative Committee to decide that question under Rule 1 of
Chapter III of 1952 Rules is an act of"self- abnegation" and therefore
void. This approach betrays, with respect, a misunderstanding of the
object of Article 235. The ideal which inspired the provision that the C
control over District Courts and courts subordinate thereto shall vest
in the High Courts is that those wings of the judiciary should be
independent of the executive. Tracing the history of that concept,
Hidayatullah, J. in State of West Bengal v. Nripendra Nath Baghchi
ha:; highlighted the meaning and purpose of Article 235, as construed
by this Court in various decisions, requires that all matters relating to D
the subordinate judiciary including compulsory retirement and
disciplinary proceedings but excluding the imposition of punishments
falling within the scope of Article 311 and the first appointments and
promtions should be dealt with and decided upon by the High Courts
in the exercise of the control vested in them. A proper understanding E
and appreciation of this position will be conducive to a correct
assessment of the situation under examination in the instant case. For,
knowing that the object of Article 235 is to ensure that independence
of an important wing of the judiciary, the inquiry which assumes
relevance is whether the procedure sanctified by the Rules of the High
Court is in any manner calculated to interfere with or undermine that F
independence. Does that procedure involve "self-abnegation", by
conceding the right of control to any outside authority? It is pertinent,
while we are on this question, to know the context in which the
expression "self-abnegation" was used by this Court. In Shamsher
Singh v. State of Punjab (supra) the action of the High Court in asking G
the State Government to ·depute the Director of Vigilance to hold an
inquiry against a judicial officer was deprecated by this Court as an
act of self-abnegation. The High Court abdicated its control over the
subordinate judiciary, which includes the power to hold a disciplinary
inquiry against a defaulting Judge, by surrendering that power to the
executive. That, truly, was an act of self-abnegation. There is no H
A
B
c
502
SUPREME COURT REPORTS [1999) SUPP. 2 S.C.R.
parallel between what the High Court did in Shamsher Singh and what ' ,
has been done in the instant case. Here, the decision to compulsorily
retire the respondent was taken by the Judges of the High Court itself,
though not by all. If some but not all Judges of the High Court
participate in a decision relating to a matter which falls within the High
Courts' controlling jurisdiction over subrodinate courts, the High
Court does not efface itself by surrendering its power to an e~traneous
authority. The procedure adopted by the High Court under its Rules
is not subversive of the independence of the subordinate judiciary,
which is what Article 235 recognises and seeks to achieve. The true
question then for decision is not the one by which the majority of the
Full Bench felt oppressed but simply, whether the procedure prescribed
by the High Court Rules is in any other manner inconsistent with the
terms of Article 235 of the Constitution."
It was also argued in that case that since the words "High Court" meant
the entire body of Judges appointed to the Court, the control over the
D subordinate judiciary which was vested by Article 235 in the High Court had
to be exercised by the whole body of Judges and that the High Court cannot
delegate that power or functions to a Judge or a smaller body of Judges of
the Court. This argument was rejected by the Constitution Bench and it was
held that there was no delegation involved in the process adopted by the
High Court for appointing an Administrative Committee under the Rules made
E by the High Court in exercise of its power under Article 225 of the Constitution
and that the Administrative Committee could recommend imposition of major
penalty which could not be questioned on the ground that such
recommendation was made not by the High Court but by the Committee of
Judges to whom the power could not be delegated. It was further held that
F if a "power" was given to the High Court by the Constitution, the manner in
which that power would be exercised, could also be laid down by the High
Court.
The Constitution Bench decision still holds the field.
G
In another decision, namely, Registrar, High Court of Madras v. RRajiah,
AIR (1988) SC 1388, the view ·of the Constitution Bench was reiterated and
it was held that recommendation for compulsorily retiring a member of the
subordinate judicial service comes within the purview of the power of control
of the High Court under Article 235 of the Constitution. In this connection,
the Court also relied upon the decisions of this Court in High Court of Punjab
H & Haryana v. State of Haryana, [ 1975] 3 SCR 365; Shamsher Singh v. State
..
Y.D. BAGDE v. STATE [S. SAGHIR AHMAD, J.]
503
of Punjab, (1975) 1 SCR 814; State of Haryana v. Inder Prakash Anand, AIR A
(1976) SC 1841 and B.Mishra v. Orissa High Court, (1976) 3 SCC 327. The
Court, however, while considering the facts of the case, observed as under:
"22. In Rajiah 's case, a Review Committee consisting of the three
judges was appointed by a resolution of the High Court. In the
meeting of the Review Committee held on June 25, 1979 to consider B
the case of the respondent Rajiah, only two Judges of the High Court
were present. The two Judges came to the conclusion that the
respondent, Rajiah should be compulsorily retired with effect from
April 2, 1980. The Division Bench found that the third Judge had no
notice of the meeting held on June 25, 1979, but he agreed with the C
view expressed by the two Judges with a slight modification that the
respondent would retire with effect from March 3, 1980 under rule
56(d) of the Fundamental Rules. The Division Bench of the High Court
took the view that as all the three Judges had not sat together and
considered the question of compulsory retirement of respondent Rajiah,
and that further, the third Judge having also modified the decision of D
the two Judges, namely, that the respondent would be compulsorily
retired with effect from March 3, 1980, the impugned order of
compulsory retirement of the respondent Rajiah was vitiated. It is true
that the members of the Review Committee should sit together arid
consider the question of compulsory retirement, but simply because E
one of them did not participate in the meeting and subsequently
agreed with the view expressed by'the other two Judges, it would not
vitiate the decision of the Committee to compulsorily retire the
respondent. The third Judge might be justified in correcting the date
with effect from which the respondent would compulsorily retire, but
that is a very minor issue and would not, in our opinion, make the F
decision invalid.
23. In regard to the case of the other respondent, namely, K.
Rajeswaran, the High Court took the view that the constitution of the
Review Committee by the Chief Justice and not by the Full Court was G
illegal. We are unable to accept the view of the High Court. We fail
to understand why the Chief Justice cannot appoint a Review Committee
or an Administrative Committee. But in one respect the High Court
is, in our opinion, correct, namely, that the decision of the Review
Committee should have been placed before .a meeting of the Judges.
Jn the case of the respondent, Rajeswaran, the decision and H
504
SUPREME COURT REPORTS [1999] SUPP. 2 S.C.R.
A
recommendation of the Review Committee was not placed before the
Full Court meeting. Nor is there aey material to show that the same •
was circulated to the Judges. Jn that sense, the recommendation of
the Review Committee was not strictly legal."
B
( Emphasis supplied )
Relying upon the extracts underlined above, learned 'counsel for the
appellant contended that since in the instant case the matter was not circulated
to all the individual Judges of the High Court nor was their opinion sought
whether the appellant was liable to be dismissed from service, the
recommendation of the High Court as also the ultimate order of the Governor
C of Maharashtra are bad in law and are liable to be quashed. This contention,
though apparently supported by the observations of this Court in Rajiah 's
c~ses (supra), cannot be accpeted as in a latter decision in High Court of
Judicature at Bombay v. Shirishkumar Rangarao Patil & Anr., [1997] 6 SCC
339, a similar plea was rejected as it was found on a consideration of various
resolutions adopted by the Bombay High Court that the Full Court having
D itself authorised the Chief Justice to constitute a Committee of Judges for
disciplinary matters, whatever decision was taken by the Committee was
treated to be a decision of the Full Court. This Court in paragraphs 10 and
11 of the report observed as under :
E
F
G
H
"10. It would thus be settled law that the control of the subordinate
judiciary under Article 235 is vested in the High Court. After the
appointment of the judicial officers by the Governor, the power to
transfer, maintain discipline and keep control over them vests in the
High Court. The Chief Justice of the High Court is first among the
Judges of the High Court. The action taken is by the High Court and
not by the Chief Justice in his individual capacity, nor by the Committee
of Judges. For the convenient transaction of administrative business
in the Court, the Full Court of the Judges of the High Court generally
passes a resolution authorising the Chief Justice to constitute various
committees including the committee to deal with disciplinary matters
pertaining to the subordinate judiciary or the ministerial staff working
th'erein. Article 235, therefore, relates to the power of taking a decision
by the High Court against a member of the subordinate judiciary. Such
a decision either to hold an enquiry into the conduct of a judicial
officer, subordinate or higher judiciary, or to have the enquiry
conducted through a District or Additional District Judge etc. and to
consider the report of the enquiry officer and to take follow-up action
-
Y.D. BAGDE v. STATE [S. SAGHIR AHMAD, J.]
505
and to make appropriate recommendation to the Disciplinary Committee A
or to the Governor, is entirely of the High Court which acts through
the Committee of the Judges authorised by the Full Court. Once a
resolution is passed by the Full Court of the High Court, there is no
further necessity to refer the matter again to the Full Court while
taking such procedural steps relating to control of the subordinate B
judiciary.
11. It is true that a resolution came to be passed authorising the
Committee of five Judges to deal with imposition of punishment on
judicial officers. The question, therefore, is whether it requires the
Chief Justice and the Committee to initiate disciplinary proceedings. C
The "delegation of the function of the High Court in respect of
punishment of judicial officers" is an exception of width and of wide
amplitude to cover within its ambit the power to take a decision by
the Committee from the stage of initiation of disciplinary proceedings,
if necessary, till its logical end, viz. recommendation to the Government
to impose a penalty proposed by the Committee. The recommendation D
is by the High Court, the controlling authority under Article 235 of the
Constitution. Therefore, it is difficult to accept the contention of Shri
Batra that the delegation is only for imposition of punishment on
judicial officers. In fact, the High Court has no power to impose any
punishment by itself. The appointing authority, viz., the Governor is E
the competent authority under the Constitution to impose punishment
in accordance with the rules framed for the purpose.