Baldev Raj Guliani & Ors Vs. The
Punjab & Haryana High Court & Ors [1976] INSC 202 (30 August 1976)
GOSWAMI, P.K.
GOSWAMI, P.K.
CHANDRACHUD, Y.V.
SHINGAL, P.N.
CITATION: 1976 AIR 2490 1977 SCR (1) 425 1976
SCC (4) 201
CITATOR INFO:
RF 1979 SC 193 (22) R 1979 SC1109 (5)
ACT:
Constitution of India, 1950--Art.
235--Disciplinary action over subordinate judiciary--Governor--If bound by the
recommendation of the High Court-Consultation with State Public Service
Commission--If warranted by Art. 235.
Suspended officer reinstated and later
compulsorily retired--Effect of--If order of suspension merged with order of
reinstatement.
HEADNOTE:
The appellant was a member of the Subordinate
Judicial Service of the State. On receipt of certain allegations the High Court
made a preliminary enquiry and the State Government suspended him from service.
After the final enquiry the High Court recommended to the State Government to
remove him from service. The State Public Service Commission, on reference by
the Government, stated that he should be exonerated. On the basis of this
recommendation, the Governor ordered the appellant's reinstatement; but the
High Court did not give him a posting on the view that the order of the
Governor was illegal because of consultation with the Service Commission and in
accepting its advice, disregarding the High Court's own recommendation. The
High Court, therefore, suggested to the Government to review its order of reinstatement,
but the Government did not take any action. The appellant then filed a writ
petition in the High Court challenging its refusal to give him a posting. In
the meantime the Governor compulsorily retired the appellant from service on
his attaining 55 years of age.
Dismissing the writ petition the High Court
held that the Governor's order ;reinstating the appellant was void and non-est
because: (i) it was not passed in accordance with the provisions of Art. 235 of
the Constitution and (ii) the Government could not have consulted the Public
Service Commission which was an extraneous body.
In appeal to this Court it was contended for
the appellant that (i) the Governor was not bound by the recommendation of the
High Court; (ii) the Governor was entitled under Art. 320(3)(c) to consult the
Public Service Commission on the question arising out of a disciplinary proceeding;
and (iii) since the appellant was later compulsorily retired, the order of
suspension merged with the order of reinstatement, and since no other order of
suspension was passed thereafter, he was entitled to full salary upto the date
of his compulsory retirement.
Dismissing the appeal,
HELD: (1)(a) Articles 233 to 237 relating to
the subordinate judiciary are specially carved out and placed in the safe niche
of a separate chapter. For the first time in the country's history appeared in
the Constitution of India the concept of control over subordinate courts to
vest in the High Courts. But the appointing authority of a Subordinate Judge
under Art. 235 as well as under the Appointment Rules, is the Governor. The
High Court, in making its recommendation to the Governor for passing the order
of removal, had rightly conceded the authority of the Governor. Ordinarily and
as a matter of graceful routine, recommendations of the High Court are and
should always be accepted by the Governor. This is ordinarily so and should be
in practice the rule as a matter of healthy convention. But it will not be
correct always to insist that the Governor has no authority even under
extraordinary circumstances to send the matter for reconsideration. [434 E; G;
D] 426 (b) The quality of exclusive control of the High Court is not whittled
down by the constitutional device of all orders being issued in the name of the
Governor as the head of the State administration. When, therefore. the High
Court, exercising disciplinary control, over the subordinate judiciary found,
after a proper enquiry, that a certain officer was guilty of gross misconduct
and was unworthy to be retained in judicial service and, therefore, recommended
to the Governor his removal or dismissal, it is difficult to conceive how and
under what circumstances such a recommendation could be rejected by the
Governor acting with the aid and advice of ministers or, of one of them. [434
G-H] The State of West Bengal v. Nripendra Nath Bagchi [1966] 1 S.C.R. 771; and
State of Haryana v. Inder Prakash Anand H.C.S., and others [1976] Supp. S.C.R.
603. referred to.
(c) Whenever in an extraordinary ease, the
Governor feels, for certain reasons, that he is unable to accept the High
Court's recommendations, these reasons will be communicated to the High Court
to enable it to reconsider the matter.
There is no warrant for introducing another
extraneous body between the Governor and the High Court in the matter of
disposal of a disciplinary proceeding against a judicial officer. The Governor
could not have passed any order on the advice of the Public Service Commission
in this case. The advice should be of no other authority than the High Court in
the matter of judicial officers. This is the plain implication of Article 235.
There is no room for any outside body between the Governor and the High Court.
In relying upon the advice of the Commission the Governor took alien
considerations into account and acted erroneously in passing the order of
reinstatement. [435 B, E-F] Consultation with the Public Service Commission
after receipt of the recommendation of the High Court for removal of the
officer was not warranted by the provisions of Art.
235. Under the Constitution the High Court is
the sole custodian over the discipline of judicial officers. [435 D] (2) (a)
Just as the High Court staff are not serving under the Government of the State,
the judicial officers are also not under the State Government. They hold posts
in connection with the affairs of the State but are entirely under the
jurisdiction of the High Court for the purpose of control and discipline. Art.
320(3)(c) is entirely out of place so far as the High Court is concerned
dealing with judicial officers. [435 F; 436 D] Pradvat Kumar Bose v. The
Hon'ble the Chief Justice of Calcutta High Court [1955] 2 SCR 1331 and The High
Court, Calcutta v. Amal Kumar Roy [1963]1 SCR 437 distinguished and held
inapplicable.
(b) The Governor cannot pass any order without
reference to the High Court and except on its recommendation. The matter should
not be considered from the angle of supremacy between one organ over the other.
Solution must be found in harmony and not in cold war between the two organs.
[437 A-B] (3) The character of the order of dismissal and that of the order of
reinstatement in a departmental enquiry is absolutely different. Suspension is
a step to dismissal and may culminate in dismissal. When an officer is
suspended no work is taken from him but he does not cease to be in service.
When he is dismissed the link with the service is snapped and naturally the
order of suspension merges in dismissal. When, however, a suspended officer is
reinstated an order which is different in content and quality from that of
suspension takes effect. The suspended officer, on reinstatement, goes back to
service. A further order may have to be passed by the authority as to in what
manner the period of suspension will be treated. That will be therefore a
distinct and separate proceeding apart from the earlier departmental proceeding
in which the order of reinstatement was passed. If the order of reinstatement
is set aside the officer is bound to revert to his immediate anterior status of
suspension in the absence of any order in that behalf from the Court. [438 A-C]
In the instant case since the order of reinstatement stood quashed, the
appellant would have the status of a suspended officer on the date of his
compulsory retirement.
It is not for this Court to say whether he
would be entitled to his 427 full salary while on suspension. Since the officer
had already retired, it is not necessary for the Governor to consider the
recommendation of the High Court for the purpose of his removal. [438 E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 908 of 1975.
Appeal from the Judgment and Order dated
13-3-75 of the Punjab and Haryana High Court in Civil Writ No. 2586/71 and
CIVIL APPEAL No. 1041 of 1975.
Appeal from the Judgment and Order dated
13-3-75 of the Punjab & Haryana High Court in Civil Writ No. 2586/71.
Kapil Sibal and S.K. Gambir, for the
Appellant in C.A. No. 908/75.
Anand Sarup and H.S. Marwah, for Respondent
No. 1 in C.A. 908/75 and for Respondent No. 2 in C.A. 1041/75.
Naunit Lal, M.N. Shroff and R.N. Sachthey,
for Respondent No. 3 in C.A. 908/75 for the Appellant in C.A. 1041/75.
The Judgment of the Court was delivered by
GOSWAMI, J.--These two appeals are by certificate from the judgment of the Full
Bench of the High Court of Punjab and Haryana. Both the appeals question the
decision of the High Court---one by the Judicial Officer and the other by the
State Government.
The appellant in Civil Appeal No. 908 of 1975
(hereinafter to be referred to as the officer) was originally a member of the
Punjab Civil Service (Judicial Branch). He was appointed as a Subordinate
Judge, IV Class, on February 27, 1956. Thereafter he was promoted as a
SubJudge, First Class, and was duly confirmed. While, as a Subordinate
Judge-cum-Magistrate First Class in Amloh, District Patiala, the Bar
Association of Amloh on May 11, 1965, sent a resolution to the High Court
levelling certain charges against the officer affecting his integrity and
impartiality. The High Court ascertained the facts through a preliminary
enquiry held by the District Judge, apparently, ex parte, at this stage.
Thereafter, on the report of the District Judge a regular departmental enquiry
was instituted. The officer was suspended by the Government on June 6, 1966, at
the instance of the High Court. The District Judge, Sangrur, was appointed as
the Enquiry Officer on July 21, 1966. He enquired into the charges levelled
against the officer.
The Enquiry Officer submitted his report and
found him guilty of all the charges except one. The High Court agreed with the
Enquiry Officer and came to a tentative conclusive that the officer should be
removed from service.
Meanwhile, the services of the officer were
allocated to the State of Haryana with effect from November 1, 1966.
428 The High Court recommended to the State
Government of Haryana to serve a notice under Article 311(2) of the Constitution
asking the officer to show cause why the penalty of removal from service should
not be imposed on him. This was done by the State Government on March 13, 1967.
The officer submitted his explanation through the High Court on April 20, 1967.
The High Court found the explanation to be unsatisfactory and recommended to
the Government that the officer should be removed from service.
The State Government, although on its own
showing, "was inclined to agree with the views of the High Court and with
the recommendation made by it", however, referred the case to the Haryana
Public Service Commission for advice purporting to act under Article 320(3)(c)
of the Constitution. The Commission advised that no case had been made out
against the officer and that he should be exonerated.
The Governor accepted the advice of the
Commission and passed the order on August 24, 1968, reinstating the officer in
service with immediate effect. The High Court was requested by the Government
to post the officer on his reinstatement. The High Court did not issue any
posting order to the officer as it was of the opinion that the order of the
Government was illegal for the vice of consultation with the Public Service
Commission and for accepting its advice disregarding the recommendation of the
High Court. The High Court requested the Government to review its order but the
Government did not take any action on that suggestion.
Since the High Court refused to pass any
posting order notwithstanding his several prayers the officer preferred in the
High Court of Punjab and Haryana a petition under Article 226 of the
Constitution on July 12, 1971, praying for a writ of mandamus directing the
High Court to issue an appropriate order of posting and also for a mandamus
directing the Government to disburse full salary to the officer including the
salary for the period under suspension and other consequential reliefs.
While the writ petition was pending before
the Full Bench, the Governor, accepting the recommendation of the High Court,
passed an order on December 16, 1974, issuing three months' notice of
compulsory retirement to the officer and the officer thus retired on March 18, 1975,
after attaining the age of 55 under the service Rules. The officer challenged
the notice of retirement by way of a writ petition in the High Court on March
10, 1975. The same was, however, withdrawn by the officer on March 13, 1975, on
which date judgment of the Full Bench was delivered in the other writ
application out of which the present appeals have arisen.
The officer, however, later on filed a writ
petition No. 747 of 1975 in this Court against the order of compulsory
retirement and he was allowed by us to withdraw the same on July 30, 1976. The
' retirement of the officer is, 'therefore, not in dispute.
429 The High Court by a majority of four
learned Judges held as follows :-(1)"Since the impugned order, exonerating
the petitioner from all charges and reinstating him, was not passed in
accordance with the mandatory provision of the Constitution embodied in Article
235 of the Constitution, order is void and non est being ultra vires Article
235 of the Constitution and the High Court was right in not giving effect to
it". They also observed that any recommendation made by the High Court in
exercise of power under Article 235 must be held to be binding on the Governor.
(2) "Since the Public Service Commission
was an extraneous body and could not be consulted and was able to influence the
decision of the punishing authority, the order suffers from a grave constitutional
infirmity and is, therefore, liable to be declared ultra vires Article 235 of
the Constitution and hence void and non est on this ground too. The High Court
was, therefore, right in disregarding that order and not implementing it by
giving the posting orders to the petitioner".
The fifth learned Judge (Gujral, J.) did not
agree with the majority with regard to the conclusion on the aforementioned
first point. He, however, agreed with the majority with regard to the second
point and also agreed with the final decision. The High Court dismissed the
officer's writ application under Article 226 and held that he could not claim
any relief on the basis of the order of reinstatement of the Governor of August
24, 1968. The High Court further held that the dismissal of the petition would
"not bar the State Government from passing an order against the petitioner
in accordance with the recommendation of the High Court completely ignoring and
keeping out of consideration the advice tendered by the Public Service
Commission".
Firstly, the appellants contend that the
Governor being the appointing authority is not bound to accept the recommendation
of the High Court and the order of reinstatement is well within his powers
under Article 311 read with the Rules for Appointment of Subordinate Judges in
Haryana and the Punjab Civil Service (Punishment and Appeal) Rules, 1952, and
is perfectly valid. Secondly, they contend that the Governor is entitled under
Article 320(3)(c) of the Constitution to consult the Public Service Commission
with regard to the matter in question arising out of a disciplinary proceeding.
Thirdly, it is contended on behalf of the officer that in view of the fact that
he was ultimately compulsorily retired on the recommendation of the High Court
and the order of suspension merged with the order of reinstatement it is no
longer possible for the Governor to pass the order of removal of a person who
has already retired from service. it is submitted that m that view of the
matter the writ application had become infructuous. and even the High Court 430
need not have decided the writ application. It is, therefore, submitted on
behalf of the officer that since on his reinstatement the order of suspension
lapsed and he had retired, he would be entitled to his full salary during the
entire period of suspension upto the date of his retirement.
On behalf of the High Court it is submitted
that under Article 235 of the Constitution the sole and exclusive disciplinary
control over the subordinate judiciary being vested in the High Court the High
Court's recommendation is binding on the Governor and the Governor ought to
have accepted the recommendation and passed an order of removal of the officer.
It is further submitted that the order of reinstatement passed by the Governor
after consulting the Public Service Commission is absolutely void and ultra
vires.
The controversies, such as we have to deal
with, have raised their un-picturesque heads from time to time. We are,
therefore, not required to write on a clean slate on this subject. Even so, one
aspect of the matter, viz., that relating to the consultation with the Public
Service Commission by the Governor with regard to judicial officers' misconduct
assumes a great importance in this case in a manner that has not arisen earlier
before this Court.
The controversy in these appeals is rather
disquieting.
In view of several decisions of this Court
wherein different facets of like problems were noticed and resolved one would
have thought that a healthy convention has grown and taken firm roots by now in
fulfilment of one of the cherished Directive Principles of the Constitution in
Article 5 which is based on the bed-rock of the principle of independence of
the judiciary.
Here, the High Court, after a full enquiry,
which has not been questioned at any stage, came to the conclusion that the
charges of misconduct of a judicial officer were established and that the
officer was of dubious integrity.
Who else but the High Court, in such a
situation, is better posted to determine the issue and advise the Governor? Yet,
the stark reality is that the High Court's recommendation was given a go-by and
the Commission's contrary advice was preferred by the Governor. Time and again
this Court has been observing hopefully that it will be in the best interest of
a high and healthy tradition for the Governor to ordinarily accept the
recommendation of the High Court in a disciplinary matter concerning judicial
officers ! We are concerned in these appeals with regard to a disciplinary
proceeding in respect of a Subordinate Judge and hence falling within the
purview of Article 235 of the Constitution. That Article reads as follows :-Art.
235. "The control over district courts and courts subordinate thereto
including the posting and promotion d, and the grant of leave W, persons
belonging to the judicial service of a State and holding any post inferior to
the post 431 of district Judge shall be vested in the High Court, but nothing
in this article shall be construed as talking away from any such person any
right of appeal which he may have under the law regulating the conditions of
his service or as authorising the High Court to deal with him other, vise than
in accordance with the conditions of his service prescribed under such
law".
In The State of West Bengal v. Nripendra Nath
Bachi(1) this Court in an elaborate judgment went into the history of Articles
233 to 237 of the Constitution. This Court held:
"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".
Dealing with the argument based on Article 311
this Court further observed in the above case as follows :-"There is,
therefore, nothing in Art. 311 which compels the conclusion that the High Court
is ousted of the jurisdiction to hold the enquiry if Art. 235 vested such a
power m 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, 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 el. (2) of Art. 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".
Article 235 makes reference to the conditions
of service which are prescribed under Article 309 of the Constitution.
The Punjab Civil Services (Punishment and
Appeal) Rules, 1952 (hereinafter to he referred to as the Punishment Rules),
were made by the Governor of Punjab in exercise of the powers conferred under
Article 309 of the Constitution.
The judicial officers also hold posts in
connect;on with the affairs of the State and the rules made under Article 309
so far as applicable, would govern their conditions of service.
There are also the Rules relating to the
Appointment of Subordinate Judges in (1) [1966] 1 S.C.R. 771.
432 Haryana (hereinafter to be referred to as
the Appointment Rules) which were promulgated by the Governor in exercise of
the powers conferred by Article 234 read wire proviso to Article 309 of the
Constitution. These Rules were made by the Governor after consultation with the
State Public Service Commission and with the High Court.. Under rule 14, Part F
of the Appointment Rules relating to Discipline, Penalties and Appeals, it is
provided as follows :--"In matters relating to discipline, penalties and
appeal including orders specified in Appendix B, members of the Service shall
be governed by 'The Punjab Civil Services (Punishment and Appeal) Rules, 1952'
as amended from time to time.
Provided that the nature of penalties which
may be inflicted, the authority empowered to impose such penalties or pass such
orders and the appellate authority shall be as specified in Appendices 'A' and
'B' below :--" In Appendix 'A' it is provided in item (f) that the punishing
authority in case of removal from the service which does not disqualify from
future employment is the "Government" and there is no appeal there from.
In item (g) of Appendix 'A' dismissal is also provided for in similar terms. In
Appendix 'B' the authority competent to pass an order of termination of the
service of a Subordinate Judge is the "Government" and there is no
appeal against such an order.
It will be seen that under rule 14 of the
Appointment Rules of the Subordinate Judges, the Punishment Rules are being
made applicable to the Subordinate Judges.
Under rule 4(vi) of the Punishment Rules read
with Appendix 'A' of Part (F) of the Appointment Rules. the competent authority
to remove a Subordinate Judge from service is the ,Government". It was,
therefore, appropriate that the High Court, after close, of the departmental enquiry,
when it was satisfied that the officer was guilty of misconduct deserving
removal from service, recommended to the Governor for his removal. Upto this
stage there was no difficulty. Trouble arose when the Government, although on
its own showing, was inclined to agree with the High Court thought it proper to
obtain the advice of the Public Service Commission as is usually done in the
case of other civil servants. As stated earlier, the Commission tendered its
advice contrary to the recommendation of the High Court and held the opinion
that the officer should be exonerated from the charges. The Government accepted
the advice of the Commission and reinstated the officer which resulted in
refusal to accept the recommendation of the High Court.
In the above premises the questions that are
raised .are--(1) Whether the Governor is bound under the Constitution to accept
the recommendation of the High Court and to pass an order of removal of the
judicial officer.
433 (2) Whether consultation with the Public
Service Commission in a matter of a disciplinary proceeding relating to the
judicial officer under the control of the High Court is unconstitutional. Is
the order of reinstatement passed by the Government constitutionally valid ?
(3) If not, what will be the position of the officer on the date of the
officer's compulsory retirement ? Is an order of removal possible after that
date ? There is no dispute that the appointing authority of a Subordinate Judge
under Article 235 as well as under the Appointment Rules is the Governor. Under
Article 235 itself the Subordinate Judge will be governed by the Appointment
Rules made under Article 234 read with Article 309. The Appointment Rules by
reference, bring in the Punishment Rules whereby the punishing authority for
removal is the "Government" mentioned in the former Rules.
With regard to the first question the
appellants submit that the Governor being the appointing authority both under
Article 235 and the Appointment Rules read with the Punishment Rules, is the
final authority to pass the order of removal of the officer and is not under
any constitutional obligation to be bound by the recommendation of the High
Court. They rely upon Article 311 of the Constitution read with the
aforementioned service Rules and submit that the control of the High Court
under Article 235 does not impinge upon the power of the Governor to refuse to
accept the recommendation of the High Court and to pass an appropriate order.
The learned counsel for the High Court, on
the other hand, submits that Article 235 of the Constitution leaves no option
to the Governor to refuse to accept its recommendation in a disciplinary matter
in respect of a judicial officer. He draws our attention to a very recent
decision of this Court in State of Haryana v. Inder Prakash Artand H.C.S. and
Others(1) to support his submission. He particularly relies upon paragraph 18
of that decision which reads:
"The control vested in the High Court is
that if the High Court is of opinion that a particular judicial officer is not fit
to be retained in service the High Court will communicate that to the Governor
because the Governor is the authority to dismiss, remove, reduce in rank or
terminate the appointment. In such cases it is the contemplation in the
Constitution that the Governor as the Head of the State will act in harmony
with the recommendation of the High Court. If the recommendation of the High
Court is not held to be binding on the State consequences will be unfortunate.
It is in public interest that the State will accept the recommendation of the
High Court. The vesting of complete control over the subordinate judiciary in
the High Court leads to this that the decision of the High Court in matters
within its (1) [1976] supp. S.C.R. 603.
434 jurisdiction will bind the State. 'The
Governor will act on the recommendation of the High Court.
That is the broad basis of Article 235. (See
Shamsher Singh & Anr. v. State of Punjab at page 841)".(1) It is
pointed out by the appellants that in Inder Prakash Anand's case (supra) the
question was whether the State Government could compulsorily retire a Senior
Subordinate Judge-cum-Chief Judicial Magistrate under the Punjab Civil Services
Rules against the recommendation of the High Court and that it was not a case
relating to dismissal or removal on the disciplinary side. Though the question
involved in I.P. Anand's case related to a different matter the abovequoted
observations of this Court, useful for all occasions, have, hopefully, a wider
cast and their significance can be overlooked only at some peril of the
desideratum nurtured in the Constitution.
The High Court, in making its recommendation
to the Governor for passing the order of removal, has rightly conceded the
authority of the Governor to pass the same.
The question is: Is the recommendation of the
High Court binding on the Governor? Since the Governor is the ultimate
authority to pass the order of removal it will not be correct always to insist
that he has no authority even under certain extraordinary circumstances to
decline to accept forthwith, the particular recommendation. Ordinarily and as a
matter of graceful routine, recommendations of the High Court are and should be
always accepted by the Governor.
That is ordinarily so and should be in
practice the rule as a matter of healthy convention.
Articles 233 to 237 relating to the
subordinate judiciary are specially carved out and placed in the safe niche of
a separate chapter, Chapter VI in Part VI of the Constitution under sub-title
'Subordinate Courts'. This by itself is significant. It is a major breakthrough
in the Constitution from the position under the Government of India Act 1935 so
far as the subordinate judiciary is concerned and clearly unfolds the keen
awareness of the rounding fathers in what has been a passionate and raging
topic with regard to independence of the judiciary all through, over the years.
For the first time, in the country's history,
appeared in the Constitution of India the concept of control over subordinate
courts to vest in the High Courts. The quality of exclusive control of the High
Court does not appear to be whittled by the constitutional device of all orders
being issued in the name of the Governor as the head of the State
administration. When, therefore, the High Court exercising disciplinary control
over the subordinate judiciary finds.
after a proper enquiry, that a certain
officer is guilty of gross misconduct and is unworthy to be retained in
judicial service and, therefore, recommends to the Governor his removal or
dismissal, it is difficult to conceive how and under what circumstances such a
recommendation should be rejected by the Governor acting with the aid and
advice (1) [1975] 1 S.C.R. 814.
435 of the council of ministers or, as is
usually the case, of one of the ministers. It is in this context that this
Court has more than once observed that the recommendation of the High Court in
respect of judicial officers should always be accepted by the Governor. This is
the inner significance of the constitutional provisions relating to the
subordinate judiciary. Whenever in an extraordinary case, rare in itself, the
Governor feels, for certain reasons, that he is unable to accept the High
Court's recommendations, these reasons will be communicated to the High Court to
enable it to reconsider the matter. It is, however, inconceivable that, without
reference to the High Court, the Governor would pass an order which had not
been earlier recommended by the High Court. That will be contrary to the
contemplation in the Constitution and should not take place.
It is not necessary to pursue the matter in
further depth as sought to be canvassed by the parties taking extreme stances
in the view taken by us on the second question.
With regard to the second submission we are
clearly of opinion that consultation with the Public Service Commission after
receipt of the recommendation of the High Court for removal of the officer is
not warranted by the provisions of Article 235.
It is true that under Article 235 as well as
under the Appointment and Punishment Rules the Governor is the appointing and
punishing authority. But under Article 235 the High Court is the sole custodian
over the discipline of the judicial officers. There is no warrant for
introducing another extraneous body between the Governor and the High Court in
the matter of disposal of a disciplinary proceeding against a judicial officer.
It is submitted on behalf of the appellants that Article 320(3)(c) provides
that the Public Service Commission shall be consulted on all disciplinary
matters affecting a person serving under the Government of a State in a civil
capacity. Judicial Officers although holding posts in civil capacity are not
serving under the Government of a State. They hold posts in connection with the
affairs of the State but are entirely under the jurisdiction of the High Court
for the purpose of control and discipline. There is, therefore, no constitutional
justification or sanction for the Governor, even if he wishes, to consult the
Public Service Commission under Article 320 (3) (c) in respect of judicial
officers. Consultation with the Public Service Commission in this case and
preference accorded to its advice ignoring the recommendation of the High Court
have introduced a serious constitutional infirmity in the final order of
reinstatement passed by the Governor.
The appellants drew our attention to a
decision of this Court in Pradvat Kumar Bose v. The Hon'ble The Chief Justice
of Calcutta High Court(1) where this Court had to deal with one of the
arguments founded on Article 320(3)(c) of the Constitution. In the above
decision Pradyat Kumar Bose, who was Registrar and Accountant-General of the
High Court on its original side and who was the (1) [1955]2 S.C.R. 1331.
436 appointee of the Chief Justice, was
dismissed by the Chief Justice after a full and thorough enquiry held by one of
the Judges of the High Court whose findings were accepted by the Chief Justice.
Inter alia, it was contended before this Court that the order of dismissal by
the Chief Justice was vitiated as the Chief Justice did not consult the State
Public Service Commission prior to dismissal of the Registrar as provided for
under Article 320(3)(c). This Court repelled the contention holding that
Article 320(3)(c) was contrary to the implications of Article 229 and the
language thereof was also not applicable to the High Court staff since the
members of the High Court staff did not serve under the Government of the Union
or of the State.
It is submitted by the appellants that this
court held that Article 320(3) (e) was not applicable since the Chief Justice
was the sole appointing and punishing authority so far as the High Court staff
was concerned under Article 229 of the Constitution. On a parity of reasoning it
is contended by the appellants that since the Governor is the sole appointing
and punishing authority under the Appointment and Punishment Rules, Article
320(3)(c) is, therefore, clearly attracted, since, according to them, if
Article 229 were not there the matter would have been considered by this Court
in a different light. We are unable to accept this submission since, as we have
pointed out, just as the High Court staff are not serving under the Government
of the State, the judicial officers are also not serving under the State
Government.
The appellants also relied upon a decision 01
this Court in The High Court, Calcutta v. Amal Kumar Roy(1). In this case also
a submission was made in this Court that the High Court should have consulted
the State Public Service Commission in superseding seniority of a Munsif as a
result of his exclusion from consideration for promotion in a particular year
which resulted in his loss of eight places in the cadre of Subordinate Judges
at the time he was actually appointed to act as an Additional Subordinate
Judge.
The particular officer's case in substance
was that this exclusion by the High Court amounted in law to the penalty of
"withholding of promotion". It was contended that the High Court
should have consulted the State Public Service Commission since article
320(3)(c) contemplated disciplinary matters. This Court disposed of this
submission by holding that losing places in a rank was not 'reduction in rank'
and that no disciplinary proceedings had been started against the particular
officer and hence there could be no occasion for the State Public Service
Commission being consulted. It is submitted by the appellants that this Court
did not reject the submission based on Article 320(3)(c), out of hand, holding
that the Article was not applicable. It is true that the aforesaid submission
was disposed of in this particular manner by this Court in the above decision.
That however, does not mean that this Court categorically held Article
320(3)(c) was attracted in the case of judicial officers. The question did not
arise in that form.
(1) [1963] 1 S.C.R.437.
437 The matter should not be considered from
the angle of supremacy of one organ over the other. That will be an entirely
erroneous approach. The Constitution reposes certain power in the Governor even
under Article 235. He is the authority to pass the order of removal, albeit, on
the recommendation of the High Court. That is the constitutional scheme. The
Governor, however, cannot pass any order, as has been done in this case,
without reference to the High Court and except on its recommendation. Solution
must be found in harmony and not in cold war between the two organs.
The Governor could not have-passed any order
on the advice of the Public Service Commission in this case. The advice Should
be no other authority than the High Court in the matter of judicial officers.
This is the plain implication of Article 235. Article 320 (3) (c) is entirely
out of place so far as the High Court is concerned dealing with judicial
officers. To give any other interpretation to Article 320(3)(c) will be to
defeat the supreme object underlying Article 235 of the Constitution specially
intended for protection of the judicial officers and necessarily the
independence of the subordinate judiciary. It is absolutely clear that the
Governor cannot consult the Public Service Commission 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.
The Governor in relying upon the advice of
the Public Service Commission in this case took alien considerations into
account and acted erroneously in passing the order of reinstatement based on
the same. The order of the Governor is, therefore, constitutionally invalid and
is liable to be quashed and we order accordingly.
That brings us to the third submission of the
appellants.
At one stage we thought that we would not
consider this submission since this may arise at the time of payment of salary
for the period of suspension as the officer has already retired. We, however,
find that even in the writ application there was a prayer for a mandamus to the
Government to disburse the officer's full salary during the entire period of
suspension upto the date of his retirement. The learned counsel for the officer
has also argued the matter fully before us. We would, therefore, deal with the
same.
Since the order of reinstatement of August
24, 1968, is quashed the officer is reverted to the status quo ante as on the
date prior to the aforesaid order. It is undisputed that he had been under
suspension during that period. It is submitted that on the passing of the order
of reinstatement the order of suspension merged in that order -and since there
is no other order of suspension passed thereafter either by the High Court or
by the Governor the officer on his compulsory retirement will be entitled to
his full salary as an officer who had already ceased to be under suspension. It
is submitted that the principle of merger which is generally invoked when an
order of dismissal is passed against an officer under suspension should apply
also in the case of reinstatement.
438 We are, however, unable to accept this
submission. The character of the order of dismissal and that of the order of
reinstatement in a departmental enquiry is absolutely different. Suspension is
a step to dismissal and may culminate in dismissal. When an officer is
suspended no work is taken from him but he does not cease to be in service.
When he is dismissed the link with the service is snapped and naturally the
order of suspension merges in dismissal. Nothing remains to be done about his
suspension. When, however, a suspended officer is reinstated an order which is
different in content and quality from that of suspension takes effect.
The suspended officer, on reinstatement, goes
back to service. A further order may have to be passed by the authority as to
in what manner the period of suspension will be treated. That will be, therefore,
a distinct and separate proceeding apart from the earlier departmental
proceeding in which the order of reinstatement was passed. If, therefore, the
order of reinstatement is set aside the officer is bound to revert to his
immediate anterior status of suspension. There may be certain service rules to
take care of this position but even otherwise the position will be automatic
and the order of reinstatement being quashed the position of the officer, in
absence of any order in that behalf from the court, will be what he was
earlier, viz., that of a suspended officer. In this view of the matter, since
the order of reinstatement stands quashed and the officer had been under
suspension in a departmental proceeding awaiting orders of the Governor for
removal, on the recommendation of the High Court, he would have the status of a
suspended officer on the date of his compulsory retirement. The officer in this
case was, therefore, compulsorily retired while he was under suspension from
service. It is not for us to decide whether being in such a position he would
be entitled to his full salary for the entire period of suspension and we
refrain from expressing any opinion on that aspect of the matter. It should,
however, be observed that since the officer has already retired it will not be
necessary for the Governor to consider the recommendation of the High Court for
the purpose of removal of the officer. We, however, do not fail to see that the
Government, on its own was inclined to accept the recommendation of the High
Court at the initial stage.
In the result the appeals are dismissed and
the order of reinstatement of the officer passed by the Governor stands quashed
for the reasons given in this judgment. There will be no order as to costs.
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