Baradakanta Mishra Vs. High Court of
Orissa & ANR  INSC 145 (6 May 1976)
RAY, A.N. (CJ) RAY, A.N. (CJ) BEG, M.
HAMEEDULLAH SINGH, JASWANT
CITATION: 1976 AIR 1899 1976 SCR 561 1976 SCC
R 1988 SC1388 (16)
Constitution of India. 1950. Article
235-Control of High Court over District Judges-Appointment by Governor-
Dismissal by High Court-Legality.
The appellant was appointed a Munsiff
and-promoted as a Subordinate Judge. He was later appointed as Additional District
Magistrate (Judicial) and then as a`r Additional District Judge by the Governor
of the State. As a result or an enquiry into certain charges he was reduced in
rank as Additional District Magistrate (Judicial) by the High Court.
After such reduction, he did not join duty. A
fresh disciplinary proceeding was, therefore, started against him, and after
enquiry, the Hi h Court dismissed him. On the same day, the High Court passed
another order of dismissal on the ground that he was convicted on a charge of
criminal contempt by a judgment of the High Court which was confirmed by this
Court. The appeals against the orders of dismissal were dismissal and by the
Governor. A writ petition filed by the appellant in the High Court for quashing
the orders was dismissed.
Allowing the appeal to this Court,
HELD: (1) The control vested in the High
Court under Art. 235 over district courts and courts subordinate thereto
includes disciplinary control over district Judges and Judges inferior to the
post of District Judges. If as a result of any disciplinary proceeding any
punishment is to be imposed on any District Judge that has to be in accordance
with the conditions of service. The conditions of service in the Civil Service
(Classification, Control and Appeal) Rules. 1962, framed under Art. 309 provide
in r. 14(4) that the appointing authority alone can impose the penalties
specified in cls. (vi) to (ix) of r. 13. Clause (vi) refers to the penalty of
reduction in rank and cl. (ix) to dismissal from service. Therefore, under the
conditions of service, the High Court cannot reduce in rank or dismiss a
District Judge, who has been appointed by the Governor.
The High Court, within the power and control
vested under Art. 235, would hold disciplinary proceedings against the District
Judge and recommend the imposition of a punishment of reduction in rank on him.
But the actual power of imposition of one of the major punishment, namely
reduction in rank, is exercisable only by the Governor who is the appointing
authority. In exercising such special powers, the Governor will always have
regard to the opinion of the High Court in the matter. Therefore, in the
present case, the order passed by the High Court reducing the appellant in rank
is unconstitutional. [576E-578C. E-Hl (2)(a) The two orders of dismissal based
on the order of reduction in rank cannot have legal effect because the
substratum of the orders of dismissal is an unconstitutional order. If the
reduction of the appellant is without jurisdiction then the appellant is deemed
to continue as a District Judge and the High Court could not dismiss
him.[578C-D] (b) There is no question of merger of the orders of the High Court
in the orders passed by the Governor. If the order of the initial authority is
void an order of the appellate authority cannot make it valid. The confirmation
by the Governor in appeal cannot have any legal effect because it is only that
which is valid that can be confirmed and not that which is void. [578D-E]
38-833 S.U.I Cl/76 562 State of West Bengal v. Nripendra Nath Bagchi  I
S.C.R. 771; High Court of Calcutta v. Amal Kumar Roy  1 S.C.R. 437. High
Court of Punjab & Haryana v. State of Haryana (In the matter of N. S. Rao)
 3 S.C.R. 365:
Parshottam Lal Dhingra v. Union of India
 S.C.R. 828.
Debesh Chandra Das v. Union of India &
Others  1 S.C.R. 220; and Shamsher Singh & Anr. v. State of Punjab
 1 S.C.R. 814, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeals
Nos. 1512 and 1513 of 1974.
Appeals by Special Leave from the Judgments
and orders dated 7th May 1974 and 30th November 1973 of Orissa High Court in
O.J.C. Nos. 1097 and 1033 of 1973 respectively.
Purshottam Chatterjee and C. S. S. Rao, for
Sachin Chaudhary and Vinoo Bhagat, for the
respondent No. 1.
Gobind Das and B. Parthasarathi, for
respondent No. 2.
ARGUMENTS For the Appellants:
(1) This appeal relates to the Writ Petition
No. 1097 of 1973. The Appellant was appointed
by the Governor as a Munsiff in 1947. He was in course of time promoted to the
post of a Sub F. Ordinate Judge.
(2) In 1961, a separate cadre of Additional
District Magistrate(Judicial) was created by the Government carrying a scale of
pay higher than that of a Subordinate Judge, and lower than that of a District
Judge. This new cadre was called Superior Judicial Service junior Branch but
such cadre for the purposes of the Constitution must be considered to be one
of, other than that of District Judges.
It will be governed by Art. 234 and not by Art.
233 which applies to the District Judges who are placed in the Superior
(3) After the cadre was created, the
appellant was superseded, but later on was appointed by the Governor as
Additional District Magistrate (Judicial). He was later on reverted to the
position of a Sub-ordinate Judge and then again promoted to the position of an
Additional District Magistrate (Judicial), by a notification issued by the
Government. On the 31st July, 1968, he was appointed by the Governor as an Additional
District Judge (4) on 8-12-72, by a notification No. 2291 dated 8-12- 72 he was
reduced in rank from the Senior branch of the Superior Judicial Service to the
Junior branch of the same Judicial Service, i.e. he was reduced to position of
an Additional District Magistrate (Judicial) from the position of an Additional
563 (5) Later by notification No. 307A dated
3-12-73 he was dismissed from service; again on the same date by another
Notification No. 308, he was dismissed from service for the second time. In
both the notification he was described as belonging to the Orissa Judicial
Service Class I, officiating in the Junior Branch of the Superior Judicial
Service. The questions in this appeal are:-Whether the three Notifications
aforesaid issued by High Court were valid as issued by a competent authority.
(6) Under the Constitution Subordinate Courts
have been divided into two classes:-(a) District Judges, (b) other than the
District Judges. Art. 233 relates to the District Judges. Art. 234 relates to
others in Judicial service than the District Judges. Art. 235 relates to the
control by the High Court of the members of both the branches of Judicial
Service (i)Art. 233 provides that:- (A) appointments of persons to be District
Judges i.e. persons who are in Judicial service or persons who are not in
Judicial service shall be appointed as District Judges by the Governor in
consultation of the High Court, (B) the posting of District Judges i.e. after a
person is appointed a District Judge, the posting of a District Judge shall be
made by the Governor in consultation with the High Court, (C) the promotions of
District Judges i.e. promotions of persons already appointed as District Judges
shall be made by the Governor in consultation with the High Court. In Orissa
there are five selection posts. Under the Constitution if a Subordinate Judge
is appointed as a District Judge, he is elevated from the category of, Judicial
officers governed by Art. 234 to the category of those governed by Art. 233. So
it is fresh appointment-promotion refers to promotions of District Judges;
appointment refers to persons "to be
appointed" as District Judges.
(ii) Art. 234 provides that appointment of
persons to the judicial service other than District Judges shall be made by the
Governor in consultation with the Public Service Commission and the High Court.
(iii)Art. 235 refers to control by the High
These three Articles should be read in a
manner That conflict between the High Court and the Governor may be eliminated
564 (7) This leads to the position that the High Court has control over the
District Judges in all matters except those reserved to the Governor under Art.
233. So in matters of appointment, promotion and posting and matters included
therein the Governor is the competent authority but he has to act in
consultation of the High Court.
(8) The High Court can conduct an enquiry but
cannot dismiss. The High Court will send the report and the recommendation to
the Governor who will on consideration of the entire matter pass an order of
dismissal if it pleases him, (Ram Gopal v. State of M.P.  I S.C.R. 472,
478) or may reject the recommendation or may ask the High Court to reconsider
the whole matter again. Because the Governor is the appointing authority he
alone can dismiss (Nripendra Bagchi v. State of West Bengal  1 S.C.R.
771.) So, "appointments, promotion and posting", includes dismissal.
(9) The question is who will pass an order
reducing a District Judge to the position of an Additional District Magistrate.
In the case of Nripendra Bagchi v. State of West Bengal, it was held as
follows- Articles '233 and 235 make a mention of two distinct powers. The first
is appointment of persons, their posting and promotions and the other is control.
It has been decided in the case of Nripendra
Bagchi that order of dismissal of a District Judge is to be passed by the
Governor. (p. 788). Section 16 of the General Clauses Act provide that the
appointing authority is the dismissing authority unless it otherwise appears.
Following this principle and considering all
the subsequent decisions, the Supreme Court held in the case of High Court of
Punjab and Haryana v. State of Haryana (in the matter of N. S. Rao) [1975) 3
S.C.R. 365, 379.
"The High Court under this Art. 235)
control cannot terminate the service or impose and punishment on the district
Judge by removal or reduction".
(10) It has been pointed out already that the
Constitution recognises two classes of subordinate courts.
The powers of the High Court with respect to
them are different. The order for appointment of a District Judge and matters
included therein must be passed by the Governor.
When a person so appointed is removed from
service or reduced to the lower rank governed by Art. 234, the order of the
Governor appointing him as District Judge impliedly cancelled; without
cancellation of the order of the Governor appointing him his the post of
District Judge, he cannot be removed from the rank governed by Court. ,33. This
cancellation cannot be made by any body other than the Governor because he was
the competent and the only authority so to appoint; hence the Governor is the
only person who can remove or reduce in rank a District Judge. Again, supposing
a 565 District Judge is appointed as a Judicial Secretary or a Legal
Remembrance or his services are placed at the disposal of the Governor, the
High Court is out of the scene, he can be reduced in rank by the Governor.
Secondly, Section 16 of the General Clauses
Act authorities the appointing authority unless otherwise provided, to suspend
or to dismiss. It does not mean that appointing authority has merely the power
to suspend and to impose merely the highest punishment, the substance is that
the appointing authority has the power beginning from suspension and ending the
power to dismissal unless otherwise provided elsewhere. Hence all intermediate
punishments may also be imposed by the appointing authority provided that there
is nothing to the contrary. Hence Governor alone has the power of removal and
Thirdly, removal entails interference with
the order of appointment which is clearly reserved to the Governor; hence
removal bas to be made by the Governor. But reduction also entails the order of
appointment 'The order for appointment as District Judge and an order for
reduction cannot stand at the same time; if they are allowed to do so they
Finally, if a small power like transfer is
given to the Governor, it cannot be imagined that an order which means his
removal from the category of officers governed by Art.
233 to the category of officers governed by
Art. 234 will be done by any authority other than the Governor.
(11) The High Court was wrong, ill holding
that the reduction in rank could be done by them. Some confusion might have
arisen from the fact that District Judges were the members of the Superior
Judicial Service and the Additional District Magistrate (Judicial) were also
placed in that Service but in the Junior branch. So the High Court might have
considered that it was mere matter of promoting and reduction within the same
sphere. In common parlance it may so appear, but the Constitution puts them in
two different categories.
Hence, High Court had no power to pass the
order or reduction by the Notification No. 2291 dated December 8, 1972.
The two subsequent notifications being based
on it are equally null and void. It was urged that the order of the Governor
confirming the orders of dismissal will prevail. It cannot be so. The initial
order being bad all orders based on it are bad  S.C.R. 136, 143.
(12) It has been said that the order of the
High Court having merge(l in the order of the Governor, the latter order
prevails being the order in appeal. That again is not so. If the order of
initial authority is null and void, and an order of a competent authority in
appeal cannot make it competant (Ledgard Hill 13 IA 134).
566 Finally, the officers of the Governor
have used the word "CONFIRMED" wrongly. The appellant filed appeals
which were dismissed but they have wrongly used confirmed though the effect of
the order may be confirmation, if the initial order of the High Court was valid
but what was confirmed was, a null and void order.
If the first order of reduction was null and
void, the appellant remained a District Judge and he was never dismissed as
such Finally even if he was correctly reduced in rank by a proper authority.
the order of dismissal must come from the Governor as he was appointed as an
Additional District Magistrate by the Governor (1966] 1 S.C.R. 771, 788).
(13) (i) First question.-Whether the High
Court in exercise of powers under Articles 235 of the Constitution can impose
any punishment a District Judge by removal or reeducation in rank.
(ii) The reply is found in the decision of N.
S. Rao's case, reported in A.I.R. 1975 S.C. 613 (622)-[1975 3 S.C.R.
365(369), which is quoted below- " xx
The High Court of course under this control, cannot terminate the services or
impose any punishment on District Judge by removal or reduction xxx if as a
result of any disciplinary proceedings, any District Judge is to be removed
from service or any punishment is to be imposed, that will be in accordance
with conditions of service".
(iii) 'Conditions of service' in this
instance, means, as embodied in the Orissa Civil Services (Classification,
Control and Appeal) Rules, 1962 (hereinafter referred to as "the C.C.A.
Rules". So, the C.C.A. Rules framed under Article 309 of the Constitution
are accepted to the constitutional. These C.C.A. Rules are undoubtedly
applicable to District Judges and Additional District Magistrates (Judl.) in
view of r. 18 of the Orissa Superior Judicial Service Rules, 1963. Thus, as per
r. 14(4) of the C.C.A. Rules, the appointing authority, that is the Governor,
alone, can impose penalties, as specified in cls.
(VI) to (IX) of r. 13 of the C.C.A. Rules,
cl. (VI) is the penalty of reduction in rank, and cl. (IX) is dismissal from
service. So, the High Court cannot reduce or dismiss a District Judge.
Second question.-Whether the High Court can
suspend a District Judge. Rule 12 of C.C.A. Rules and s. 16 of the General
Clauses Act, debar the High Court to effect such suspension. Provisions of the
General Clauses Act are applicable for interpretation of the Constitution (
vide Art. 367 ( 11 ) .
567 Third question.-Whether the High Court
can dismiss an Addl. Dist. Magistrate (Judl.). If the reduction of the
appellant, for the above reasons, is without jurisdiction, then the appellant
is deemed to be continuing as a District Judge, and in view of the above
submission, the High Court cannot dismiss him.
Even otherwise, the High Court cannot dismiss
him. This is clear from the observation of this Hon'ble Court in Bagchi's case,
reported in A.I.R. 1966 S.C. 447 (454)- 1 S.C.R. 711.
"Reading the above with Arts. 233 and
234, he (Mr. Sen) contends, and rightly that a District Judge or a Judge,
subordinate to the District Judge cannot be dismissed or removed by any
authority other than the Governor.
The next question:-Whether the reduction of
the appellant from the rank of Addl. Dist. Magistrate (Judl.) in January 1962,
is hit by Art. 311(2) of the Constitution.
Annexure-3 will clearly disclose that the
said reduction was as a measure of penalty and hence the provisions of Art.
311(2) are attracted. There having been no
enquiry, it is liable to be quashed.
This reduction had been challenged in a
previous writ proceeding, whether the State Government and the High Court as
the O.Ps suppressed the truth, as had been in the Annexure 3 and thus,
practised fraud on the Court. Hence, that decision is revisable under the broad
principle of Sec.
151, C.P.C. or otherwise. The reasons given
by the High Court to refuse this relief are not acceptable in law.
Hence all the orders may be quashed and the
appeal be allowed with costs, as the appellant has done nothing to disentitle
him from getting costs.
For Respondent No.1
1. Facts and dates a. The Appellant was
appointed as a Munsiff, on probation, in 1947; and was confirmed in that cadre
The Appellant was appointed Sub-Judge by
promotion and was confirmed as such on 20.9.1958.
b. In 1961, a new cadre of Additional
District Magistrates (Judicial) was created by Government: ADM(J)'s ranked
between Sub-Judge and District Judge. The Appellant was supperseded by four
judicial officers when appointments were made to the new cadre 568 of ADM(J) on
28-9-1968. The Appellant made a representation to Government against this
supersession but the same was rejected, The Appellant was superseded again when
more appointments were made to posts of ADM(J); the Appellant was considered
but found unfit. The Appellant was superseded innumerable times and at
practically every stage of his career.
c. On 28.3.1962, the Appellant was, for the
first time, appointed to officiate as ADM(J). The appointment was made by
Government as the Orissa Superior Judicial Service Rules, 1963, had not then
come into force; and Article 235 had not been interpreted in Bagchi's case -
 1 SCR 771 - by the Supreme Court.
d. By notification No. 1068, dated 15-1-1963,
issued by Government, the Appellant was reverted from the post of temporary
ADM(J) to his substantive rank of Sub-Judge; and he was posted as Sub-Judge,
e. The above order of reversion was
challenged by the Appellant in a writ petition before the High Court of Orissa
(O.J.C. No. 168 of 1964) but the writ petition was dismissed by judgment
reported at ILR  Cuttack 503. The Appellant preferred a petition for
special leave to appeal to the Supreme Court - SLP (Civil) No. 53 of 1967 - but
the same was rejected. And the matter stood concluded.
f. The Appellant committed acts of misconduct
while working as Sub-Judge, Sundergarh, after his reversion aforesaid. An
enquiry was held; the Appellant was found guilty and the punishment awarded was
stoppage of two increments. The Appellant was under suspension from 15-5-64 to
g. The High Court appointed the Appellant to
the post of ADM(J), by promotion, on 5.2.1968. Under Rule 10 of the Orissa
Superior Judicial Service Rules, 1963, the High Court is the appointing
authority empowered to appoint ADM(J)s by promotion from the rank of Sub-Judge.
The Governor has no power to appoint ADM(J)s (or to appoint Sub-Judges under
the Orissa Judicial Service Rules, 1964, which relate to Munsifs and Sub-Judge;
the High Court alone can appoint Sub-Judges by promoting Munsiffs).
h. The Appellant was promoted officiating
Additional District Judge by the Governor. Thereafter, he worked under Government
as Joint Secretary, Law Department and later on as Endowment Commissioner.
Subsequently, he was appointed officiating Additional District & Sessions
i. Three departmental proceedings had been
started against the Appellant in respect of his work as Endowment Commissioner;
and he had also been convicted for contempt of court. While working as
Additional District & Sessions Judge, Cuttack, the Appellant committed 569
acts of indiscipline, and was found to have tampered with judicial records.
j. The Appellant was thereupon reverted to
the rank of ADM(J) on 1-9-1971. But subsequently, on 21-3-1972, the order of
reversion was cancelled by the Governor, who suggested that departmental
proceedings could be drawn up against the Appellant. This act of cancellation
of the reversion order has been commented on by this Hon'ble Court in  2
SCR 282 at 288-Baradakanta Mishra vs. Registrar of Orissa High Court & anr.
k. Disciplinary proceedings were started
against the Appellant by the High Court, and the Appellant was placed under
suspension. The Appellant was found guilty of the charges framed against him.
By order dated 8.12.1972, the High Court imposed the punishment of reduction in
rank from Additional District & Sessions Judge to ADM(J); the Public
Service Commission was consulted regarding the imposition of this punishment
and it concurred.
l. The Appellant was posted as ADM(J),
Sambalpur, by notification dated 8-12-1972, which was served on him on 9-
12-1972. The Appellant did not proceed to Sambalpur, and never joined his post
as ADM(J). The Appellant remained absent from duty for one year until he was
eventually dismissed in December 1973 (by notification dated 3.12.1973).
m. A disciplinary proceeding was started
against the Appellant on 1.2.1973 for deserting service. By order dated
25.6.1973, the Inquiring Judge found the Appellant guilty of the charge of
wilful absence from duty.
n. The Appellant was offered an opportunity
of being heard personally by the Full Court on 27-11-73, but the Appellant
wrote to the High Court on 24.11.73 that he was seriously ill and had been
advised complete rest for a fortnight. The High Court rejected his request for
adjournment and fixed the hearing for 30-11-73. The Appellant-notwithstanding
that he claimed to be seriously ill-came to the High Court on 27-11-1973 and
No. 1033 of 1973, which gave rise to CA No.
1513 of 1974.
The Appellant did not however appear before
the High Court to show cause against the punishment proposed to be awarded.
o. The Appellant was dismissed on two counts,
which were recorded in two separate orders as the orders were passed on two
(i) By order dated 30-11-1973, the Appellant
was dismissed for having been found guilty of the charge of having deserted
(ii) By another order also dated
30.11.1973-the High Court also awarded the punishment of dismissal on account
of the Appellant's conduct leading to his conviction for contempt of court,
which was upheld by the Supreme Court in  2 SCR 282.
570 (iii) Based on the aforesaid orders, two
notifications, both dated 3-12-1973, were issued by the High Court dismissing
the Appellant from service.
(vi) The High Court consulted the Public
Service Commission regarding the proposed punishment of dismissal to be awarded
to the Appellant, and the PSC had concurred therein.
p. The Appellant field O.J.C. No. 1087 of
1973 in the High Court challenging, inter alia, the orders of dismissal, the
order of reduction in rank, and seeking a declaration that he should be
considered senior to one B. R. Rao, who superseded him in 1961, and as holding
the post of District Judge before B. R. Rao. The High Court dismissed the said
O.J.C. No. 1087 of 1973 by judgment dated 7.5.1974: this judgment is impugned
in CA No. 1512 of 1974.
2. The High Court was competent to dismiss
the Appellant from his post of ADM(J).
a. The words "posting and
promotion" in Article 233 of the Constitution mean appointment of a
District Judge by promotion from the preceding, lower rank in the judicial
service-State of Assam & anr, vs. Kuseswar Saikia & ors.
(1970) 2 SCR 928. The same words-posting and
promotion-in Article 235 must also bear the same meaning and must mean
appointment by promotion of judges subordinate to District Judges. Therefore,
Article 235 confers the power of appointment by promotion (as distinguished
from appointment by direct recruitment) on the High Court, just as the similar
power in respect of District Judges is conferred on the Governor by Art. 233.
2(a) (i). The Supreme Court has held in The
High Court of Calcutta vs. Amal Kumar Roy-(1963) 1 SCR 437 at 447-that, 'It is
therefore, clear that after the coming into force of the Constitution, the High
Court is the authority which has the power of promotion in respect of persons
belonging to the State Judicial Service, holding any post inferior to that of a
District Judge.' It is not contended by the plaintiff-respondent that there is
any other authority which could have dealt with him in the matter of promotion
from the post of a Munsiff to that of a Subordinate Judge.
b. Article 234 governs the appointment by
direct recruitment of persons to posts subordinate to that of District Judge.
Article 235 governs the subsequent appointment by promotion to such subordinate
posts (e.g., from Munsiff to Sub-Judge, and from Sub-Judge to ADM(J)- Sathya
Kumar & ors. vs. State of Andhra Pradesh & ors. AIR 1971 A. P. 320.
c. Under the provisions of the Orissa
Judicial Service Rules, 1964, recruitment to the post of Munsiff is made by the
Governor by means of a competitive examination: r. 5 Recruitment to the post of
Sub-Judge is made only by the High Court by promotion from amongst Munshiffs r.
571 d. Similarly, under the Orissa Superior
Judicial Service Rules, 1963, recruitment to post of ADM(J) is made only by the
High Court by promotion of Sub-Judges r. 10. The Governor makes appointment to
the post of District Judge, whether by direct recruitment or by promotion: rr.
8 & 9.
e. These two sets of Rules are in accord with
the provisions of Arts. 233, 234 and 235 of the Constitution.
And they are also in accord with the two
decisions referred to above:  2 SCR 928, and AIR 1971 A. P. 320.
f. It may be mentioned that in Shamsher Singh
case  1 SCR 814-the power of dismissal was rightly held to be in the
Governor because the dismissal was of a Sub-judge who had been directly
recruited by the Governor, the post of Sub-judge who had been lowest post in
the judicial service of Punjab.
3. High Court's power to impose penalties on
District Judges-other than those of dismissal or removal. The High Court has
power to impose the penalty of reduction in rank.
a. The nature and extent of the High Court's
"control" over the subordinate judiciary (including District Judges)
under Article 235 of the Constitution was authoritatively determined in
Bagchi's case- 1 SCR 771. And the law so laid down by the Supreme Court
has been followed by the High Court.
b. It was held in Bagchi that the High
Court's disciplinary control over District Judges is complete- subject only to
the power of the Governor in the matter of appointment and dismissal or
removal. In exercise of power under Art. 235, the High Court can hold inquiries
against District Judges under Art. 311(2), and can impose all punishments other
than dismissal or removal, which are governed by Art. 311 (1) and are vested in
the appointing authoriy, the Governor in the case of District Judges. The ratio
of Bagchi in this behalf is rested on Art. 311 of the Constitution.
c. The only logical basis for determining the
extent of power to hold inquiries and to impose punishments lies in Art 311.
Any other demarcation of the limits of the High Court's disciplinary
power-e.g., on the basis of severity of the punishment involved-will
necessarily have to be on an arbitrary basis, and will give rise to endless
disputation as to whether a particular punishment falls within, or outside of
the High Court's control under Art 235. Dismissal and removal are excluded from
the High Court's control not because of the severity of the punishment, but on
account of their being relatable to the power of appointment.
d. Curtailment of the High Court's control
235, as expounded in Bagchi will erode the
independence of the subordinate judiciary.
e. Reduction in rank is a punishment which
does not, and cannot fall under the head of "dismissal or removal".
Reduction in rank is expressly excluded from
Art. 311 (1), and is mentioned as distinct from dismissal and removal in Art.
311(2). Reduction in 572 rank does not result in ouster from service, while
dismissal or removal does.
f. N. S. Rao's case- 3 SCR 365-was
concerned with the power of confirmation of a District Judge in the cadre.
The extent of the High Court's control in
terms of disciplinary measures was not in issue. And, the Supreme Court
reiterated the decision in Baegchi at p. 374. However, at p. 379, the following
"The Governor has power to pass an order
of dismissal, removal or termination on the recommendations of the High Court
which are made in exercise of the power of control vested in the High Court.
The High Court of course under this control cannot terminate the services or
impose any punishment on District Judges by removal or reduction."
The first sentence describes the power to
terminate, remove and dismiss as being vested in the Governor. The next
sentence excludes the power of termination, removal and reduction from the High
g. It is submitted that the word
"reduction" which occurs in the aforesaid sentence is a non sequitur
to what is being discussed/recapitulated in that passage, and appears to have
crept in place of the word "dismissal" in view of the preceding
sentence in that passage. The Court in Rao was not at all concerned with the
High Court's power to impose penalties and certainly not with the penalty of
reduction in rank.
h. In any event, the existence of the word
"reduction" in the aforesaid sentence cannot have the effect
overruling, or curtailing, or even re-interpreting the High Court's
disciplinary control under Article 235 as laid down in Bagchi. Also, Rao does
not purport to differ from Bagchi in any manner. Rao cannot be pressed into
service by the Appellant in support of the contention that the High Court could
not reduce him in rank from the post of District Judge to that of ADM(J).
4. Whether a division Bench can decide the
question relating to power to reduce in rank- It is submitted that in the event
this Hon'ble Court is inclined to take the view that power to reduce in rank
does not fall within the High Court disciplinary control under Art. 235 as held
in Bagchi then the matter ought to be placed before a Constitution, Bench in
view of the provisions of Art. 145(3) of the Constitution and the important and
substantial question as to interpretation of Art. 23 aid 311 being involved,
and also re-consideration of Bagchi.
5. The Appellant's contention regarding his
reversion in 1963 was not, as far as counsel for the High Court can recall,
pressed at the hearing and cannot therefore be raised in the synopsis of
arguments as is purported to be done in para 4(i) thereof. In any 573 event,
the question of the validity of the reversion was finally decided by the High
Court's decision reported at ILR 1966 Cuttack 503 and the refusal of special
leave against that decision). The other grounds for rejection of this
contention that are recorded in the impugned judgment may also be seen.
6. Effect of the Appellant's appeals to the
Governor against the High Court's orders of dismissal, reduction in rank, etc.
a. The Appellant's appeals were prefered
under Rules 22(2) and 29(1) of the Civil Services (Classification, Control
& Appeal) Rules, 1962, and were entertained by the Governor under the said
Rules. These Rules enable the Governor to consider the appeals on merits, and
were so considered-and rejected. In other words, the Governor considered the
entire matter on merits and had before him the entire record relating thereto
which was forwarded by the High Court.
b. In these circumstanced, it is submitted in
the alleviative to the preceding submissions, that even if it be assumed that
the power of dismissal and of reduction in rank be vested in the Governor, the
Governor may, in effect and in substance, be taken to have dismissed the
Appellant, And the High Court's orders in this behalf may be taken as
recommendations. In other words, both the High Court and the Governor being of
the view that the Appellant ought to be dismissed from service (and, earlier,
reduced in rank), it will be academic to consider where the power to dismiss
and reduce in rank lies in the present case.
The Judgment of the Court was delivered by
RAY, C.J.-This appeal arises out of the judgment dated 3 December, 1973 of the
High Court of Orissa The appellant filed a writ petition for quashing the order
of the High Court dated 8 December, 1972 reducing the appellant in rank and for
quashing orders dated 3 December, 1973 passed by the High Court dismissing the
appellant from service.
The High Court dismissed the petition of the
The questions for consideration are two.
First, whether the High Court was competent to reduce the appellant in rank.
Second whether the High Court could pass orders dismissing the appellant from
The appellant was appointed by the Governor
as a Munsiff in the State of Orissa in 1947. He was in course of time promoted
to the post of a Subordinate Judge. The appellant was appointed by the Governor
on 28 March, 1962 as Additional District Magistrate (Judicial).
In 1961 a separate cadre of Additional
District Magistrates (Judicial) was created by the Government. This new cadre
was called "Superior Judicial Service Junior Branch" This cadre is
not the same as that of District Judges and Additional District Judges who
belonged to Superior Judicial Service Senior Branch.
574 The appellant was on 15 January, 1963
reverted from the post of Additional District Magistrate (Judicial) to the rank
of Subordinate Judge. The appellant challenged the order of reversion in a writ
petition in the High Court of Orissa. The writ petition was dismissed as will
appear from the judgment reported in I.L.R. 1966 Cuttack 503. The appellant
made an application for special leave to appeal to this Court being Special
Leave Petition (Civil) No. 53 of 1967. The application was rejected.
On 5 February, 1968 the High Court appointed
the appellant to the post of Additional District Magistrate (Judicial) by
promotion. It is said that under Rule 10 of the Orissa Superior Judicial
Service Rules 1963 the High Court is the appointing authority empowered to
appoint Additional District Magistrates (Judicial) by promotion from the rank
of Subordinate Judge.
On 31 July, 1968 the appellant was appointed
by the Governor as an Additional District Judge.
On 8 December, 1972 the High Court imposed on
the appellant the punishment of reduction in rank from the post of Additional
District and Sessions Judge to an Additional District Magistrate (Judicial).
The order passed by the High Court dated 8 December, 1972 records that in
pursuance of the control vested in the High Court under Article 235 of the
Constitution in a disciplinary proceeding initiated on charges dated 29 April,
1972 against the appellant an officiating member of the Orissa Superior
Judicial Service Senior Branch the appellant is reduced in rank with immediate
effect and is released from suspension.
On 30 March, 1972 the High Court passed an
order in exercise of powers under Article 235 to the effect that the appellant
was placed under suspension forthwith because a disciplinary. proceeding
against the appellant was contemplated.
On 29 April, 1972 charges were served on the
He was asked to submit an explanation. He did
not do so. He thereafter asked for inspection of certain documents. A date was
appointed but he did not inspect any document. With regard to the enquiry
pursuant to the charges delivered to the appellant on 29 April, 1972 the
learned Judge of the High Court who was the Enquiring Judge came to the
conclusion that one of the charges was established that the appellant after
pronouncing judgment on 22 June, 1971 penned through his signatures on the
judgment and entered into the order-sheet that It was not delivered. The
Enquiring Judge also found The appellant guilty of tampering with the records
of the Court. The Enquiring Judge also found the appellant guilty of the charge
that though the appellant was ordered by the Court pending enquiry and during
his suspension to fix the Headquarters at Cuttack he did not comply with the
In the background of this Enquiry the High
Court ordered that the appellant be reduced to the rank of Additional District
Magistrate. The appellant challenged this order.
575 After the order of reduction on 8 December,
1972 the High Court issued orders posting the appellant as Additional District
Magistrate Sambalpur and directed him to join at his new station. The appellant
did not join the new station nor did he apply for leave. A fresh disciplinary
proceeding was started against the appellant for wilful absence from duty. The
matter was enquired into by a Judge of the High Court The appellant submitted
that the order reducing him was beyond the powers of the High Court. The
Enquiring Judge found him guilty The appellant was given an opportunity to show
cause against the order. The appellant did not do so.
The High Court thereupon imposed the
punishment of dismissal on the appellant and dismissed him. One of the orders
of dismissal recited that in pursuance of the order passed by the Court in
exercise of its powers under Article 235 of the Constitution in a disciplinary
proceeding initiated on charges dated 1 February, 1973 the appellant an officer
of the Orissa Judicial Service Class I officiating in the Junior Branch of the
Orissa Superior Judicial Service is dismissed from service with immediate
effect. Another order of 3 December 1973 recited that in pursuance of the order
passed by the Court in exercise of its powers under Article 235 the appellant
an officer of the Orissa Judicial Service Class I, officiating in the Junior
Branch of the Orissa Superior Judicial Service, who has been convicted on the
charge of criminal contempt by judgment of the Orissa High Court reported in
I.L.R. 1973 Cuttack 134 (Registrar of the Orissa High Court v. Baradakanta and
Anr.) which was confirmed by the Supreme Court by judgment dated 19 November,
1973 (Baradakanta Mishra v. Registrar, Orissa High Court & Anr.) in
Criminal Appeal No. 41 of 1973 is on the ground of conduct leading to such
conviction, dismissed from service with 'immediate effect. The judgment of this
Court is reported in 2 S.C.R. 282.
The respondents contended that the High Court
has disciplinary control over District Judges and in exercise of that power the
High Court can hold an enquiry and can impose all punishments other than
dismissal or removal. The punishment of reduction in rank is said by the
respondents not to be dismissal or removal because reduction in rank does not
result in ouster from service. The respondents, therefore, submit that the
order of 8 December, 1972 reducing the appellant in rank was within the control
vested under Article 235 of the Constitution in the High Court.
With regard to the orders of dismissal the
respondents submitted that the appellant preferred appeals from the orders. The
appeals were heard and dismissed by the Governor. The respondents, therefore,
submit that the dismissal in effect and substance is by the Governor. The
orders of dismissal are said by the High Court to be recommendation to the
Governor of dismissal of the appellant. The respondents submit that the
appellant did not challenge the order of the Governor, and, therefore, the
orders have become final.
Article 233 provides that the appointment,
posting and promotion of District Judge is by the Governor. The posting of a
District Judge is the initial or the first posting as District Judge. The
promotion of District Judge is appointment of persons by promotion to 576
District Judges. When a Subordinate Judge is appointed as a District Judge the
appointment is by promotion but it is a fresh appointment by promotion to be a
Article 234 provides that appointment of
persons other than District Judge to the Judicial Service of a State shall be
made by the Governor in consultation with the State Public Commission and with
the High Court.
Article 235 is relevant for the purpose of
present appeal. The Article states that 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 have under the law regulating the
conditions of his service or as authorising the High Court to deal with him
otherwise than in accordance with the conditions of his service prescribed
under such law.
The scope of Article 235 has been examined by
this Court in several decisions. The important decisions are The State of West
Bengal v. Nripendra Nath Bagchi; The High Court of Calcutta v. Amal Kumar Roy;
High Court of Punjab and Haryana v. State Haryana (In the matter of N.S. Rao)
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
"ves" 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 matter 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 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) 577 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.
In N. S. Rao's case (supra) this Court said
"The Governor has power to pass an order of dismissal, removal or termination
on the recommendations of the High Court which are made in exercise of the
power of control vested in the High Court. The High Court of course cannot
terminate the services or impose any punishment no District Judge by removal or
reduction. The control over District Judge is that disciplinary proceedings are
commenced by the High Court. If as a result of any disciplinary proceeding any
District Judge is to be removed from service or any punishment is to be
imposed, that will be in accordance with the conditions of service.
It is indisputable that the appellant was
promoted to the post of Additional and Sessions Judge. That is the cadre of
District and Sessions Judge. He was reduced in rank.
Reduction in rank is one of the major
punishment mentioned in Article 311. The major punishments are dismissal,
removal, or reduction in rank. The words "dismiss, remove or reduce in
rank" have stigma, namely, the meaning which they bear as three major
punishments in Service Rules. The difference between dismissal and removal is
that dismissal ordinarily disqualifies any future employment and removal
ordinarily does not (See Parshotam Lal Dhingra v. Union of India. If one is
reverted by way of punishment for misconduct Article 311(2) is attracted. The
expression "reduction in rank" means that the person who holds the
position of a Subordinate Judge has been reduced to the post of a Munsiff. The
rank of a Subordinate Judge is higher than that of the Munsiff. But Subordinate
Judges in the same cadre hold the same rank though they have to be listed
according to their seniority in the Civil List. Therefore, losig some places in
the seniority list in the same cadre does not amount to reduction in rank under
(See The High Court of Calcutta v. Amal Kumar
Reduction in rank may be brought about in the
garb of a reversion. (See Debesh Chandra Das v. Union of India & Ors.
It was argued in N. N. Bagchi's case (supra)
that the extent of control exercisable by the High Courts under Article 235
must be so cut down as to keep disciplinary jurisdiction out. This argument was
not accepted by this Court. This Court said that the provisions that certain
powers are to be exercised by the Governor and not by the High Court do not
take away other powers from the High Courts. This Court however incidentally
added that in exercising these special powers in relation to inquiries against
District Judges, the Governor would always have regard to the opinion of the
High Court in the 578 matter. This Court concluded by holding that there is
nothing in Article 311 which compels the conclusion that the High Court is
ousted of the jurisdiction to hold the enquiry.
The High Court within the power and control
vested under Article 235 could hold disciplinary proceedings against the
appellant and could recommend the imposition of punishment of reduction in rank
on the appellant. The actual power of imposition of one of the major
punishments, viz., reduction in rank is exercisable by the Governor who is the
appointing authority. The order passed by the High Court on 8 December, 1972
reducing the appellant in rank is unconstitutional and is quashed.
The two orders of dismissal dated 3 December,
1973 are based on the order of 8 December, 1972. The substratum of the orders
of dismissal being unconstitutional the orders of dismissal cannot have any
legal force. Further, the contention of the High Court that the orders of
dismissal passed by the High Court merged in the orders passed by the Governor
cannot be accepted. If the order of the initial authority is void an order of
the appellate authority cannot make it valid. The order of the Governor used
the word "confirm". The appellant filed appeals to the Government.
The appeals were dismissed. The confirmation
by the Governor cannot have any legal effect because that which is valid can be
confirmed and not that which is void.
For the foregoing reasons as is pointed out
in N. S. Rao's case the High Court cannot terminate the services or impose any
punishment on the District Judge. If as a result of a disciplinary proceeding
any District Judge is to be removed from service or any punishment is to be
imposed that should be in accordance with the conditions of service.
In the present case the conditions of the
Civil Services (Classification, Control and Appeal) Rules 1962, framed under
Article 309 provides in Rule 14(4) that the appointing authority alone can
impose penalties as specified in clauses (vi) to (ix) of Rules 13. Clause (vi)
is the penalty of reduction in rank and clause (ix) is dismissal from service.
Therefore, under the conditions of service the High Court cannot reduce in rank
or dismiss a District Judge.
If the reduction of the appellant is without
jurisdiction then the appellant is deemed to continue as a District Judge. The
High Court could not dismiss the appellant. Dismissal could only be by the
Governor. This is clear from the decisions of this Court in N. S. Rao's case
(supra) and Shamsher Singh & Anr. v. State of Punjab.
579 The appeal is, therefore, accepted. The
judgment of the High Court is set aside. The orders passed by the High Court on
8 December, 1972 and 3 December, 1973 are quashed.
In view of the orders being quashed the
appellant will be deemed to be an Additional District Judge up to the date he
retired. Parties will pay and bear their own costs.
V.P.S. Appeal allowed.