Pradeep Singh Jain v. State of Uttar Pradesh — 1975 DIGILAW 374 (ALL)

ORDER T. S. Misra, J. - This is a petition under Articles 226 and 227 of the Constitution. The petitioner joined the Provincial Civil Service (Judicial) in the year 1952. He was posted as a Munsif and worked as such till the year 1960. He was, however, confirmed as a Munsif in the year 1954. He was then promoted as Civil Judge in the year 1960. While the petitioner was posted as Civil Judge at Kheri he was placed under suspension on 13-10-1969 as per order of the Court, a true copy of which is Annexure-1 to the petition. The petitioner was served with a letter dated 25-6-1970 which contained a charge-sheet. This letter was sent by Administrative Tribunal No. 1 constituted under the U.P. Disciplinary Proceedings (Administrative Tribunal) Rules, 1947 and he was required to furnish an explanation within one month of the receipt of the charge-sheet. It appears from the averments made in the counter-affidavit filed on behalf of opposite parties 1 and 2 that the Government of U.P. had written to the High Court on 31-7-1967 seeking concurrence of the Court to hand over the matter to the vigilance department to enable the Government to collect material against the petitioner. A similar request was made by the Government on 6-2-1968. The High Court informed the Government by letter dated 31-5-1968 that the matter against the petitioner had been referred to the Vigilance Department. Thereafter on 28-8-1969 the High Court sent to the State Government copy of the report of the Vigilance Cell stating that on examining the said report the High Court was of the view that the case of the petitioner should be made over to the Administrative Tribunal and he should be suspended pending inquiry by the Tribunal. It is thus that the petitioner was placed under suspension and the matter was referred to the Administrative Tribunal by the Governor and thereupon a charge-sheet was served upon the petitioner. 2. Proceedings in the case were then taken by the Administrative Tribunal which ultimately submitted its report dated 29-6-1971 along with Annexure-F to the counter-affidavit on behalf of opposite parties 1 and 2. This report was sent by the Tribunal along with its letter of date, recommending that the petitioner be awarded punishment of dismissal from service. 2. Proceedings in the case were then taken by the Administrative Tribunal which ultimately submitted its report dated 29-6-1971 along with Annexure-F to the counter-affidavit on behalf of opposite parties 1 and 2. This report was sent by the Tribunal along with its letter of date, recommending that the petitioner be awarded punishment of dismissal from service. A copy of the letter Annexure-F was also sent by the Government to the High Court along with the report of the Tribunal for its opinion. In reply to that letter the Additional Registrar of the High Court by his letter dated 16-10-1971 (Annexure-B) informed the Government that the Court concurred with the findings of the Tribunal. The petitioner was then served with a show cause notice on 12-11-1971. The petitioner submitted his reply on 17-1-1972. Finally, the order of dismissal was made by the Governor on 27-5-1972 vide Annexure-13. The petitioner has sought for a writ in the nature of certiorari to quash the said order Annexure-13 to the writ petition and also a writ in the nature of mandamus commanding the respondent No. 2 not to implement and execute the said order. 3. For the petitioner three points were urged before me. First, the petitioner was in judicial service and was under the control of the High Court. The disciplinary proceedings were however not initiated by the High Court hence the same were bad in law. Consequently the order dismissing the petitioner from service was illegal and void. Secondly, the petitioner had requested the Administrative Tribunal to permit him legal assistance of a trained lawyer for the purpose of examination and cross-examination witnesses, but the Administrative Tribune relying on Rule 7 of U. P. Discipline Proceedings (Administrative Tribune Rules, 1947 refused that assistance to the petitioner. The petitioner was thus denied a reasonable opportunity of defence. It was urged that the said Rule 7, relied upon by the Administrative Tribunal, was ultra vires. Thirdly, the findings of the Administrative Tribunal were based on no evidence. I shall deal with these points in seriatim. 4. Article 235 of the Constitution provides that the control over District Courts and Courts subordinate thereto including the posting and promotion of 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. I shall deal with these points in seriatim. 4. Article 235 of the Constitution provides that the control over District Courts and Courts subordinate thereto including the posting and promotion of 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. Article 236 stipulates that the expression `District Judge' includes among others an Assistant Sessions Judge. It is not disputed that on the relevant date the petitioner was an Assistant Sessions Judge. He was, therefore, under the control of the High Court. Under Article 233 of the Constitution the appointment as well as promotion of persons to be District Judges is made by the Governor in consultation with the High Court. Thus the initial appointment of persons to be, as well as promotion of District Judges is with the Governor, but once They are appointed as District Judges the entire control is vested in the High Court, and as pointed out in Samsher Singh v. State of Punjab, AIR 1974 SC 2192 : (1974 Lab IC 1380) the High Court has to hold the inquiry against a member of subordinate judicial service preferably through District Judges and that the members of the subordinate judiciary look up to the High Court not only for discipline but also for dignity. The Control vested in the High Court under Article 235 includes disciplinary jurisdiction and is a complete control, subject only to power of the Governor in the matter of appointment (including dismissal and removal) and posting and promotion of District Judges. (See The State of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447 ). 5. In the case of the High Court of Punjab and Haryana v. The State of Haryana, (1975) 1 SCC 843 : (1975 Lab IC 375) the Supreme Court observed that 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 control over district Judges is that disciplinary proceedings are commenced by 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 control over district Judges is that disciplinary proceedings are commenced by the High Court. 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 the conditions of service. 6. Applying these principles, I have therefore to see whether the disciplinary proceedings against the petitioner were commenced by the High Court. The case of the petitioner was that these proceedings were commenced by the Governor and not by the High Court, whereas in the counter-affidavit filed on behalf of opposite parties 1 and 2 it is averred that the proceedings were commenced with the concurrence of the High Court, From a perusal of Annexure-A to this counter-affidavit it is, however, quite clear that the proceedings were commenced at the instance of the High Court. The Registrar of the High Court by his letter Annexure-A informed the Government that on examining the note of S.P. Vigilance, the Court was of the view that the case of Sri P.S. Jain should be made over to the Administrative Tribunal and he should be suspended pending inquiry by the Tribunal. The petitioners case was sent to the Administrative Tribunal after receiving this letter. I am, therefore, of the view that the proceedings against the petitioner were commenced at the instance of the High Court. The High Court was also informed of the report of the Tribunal and its recommendation and the Court expressed its agreement with the findings recorded by the Tribunal. This also indicates that the proceedings against the petitioner were commenced and conducted at the instance of the High Court. 7. But, it appears that after serving a show cause notice on the petitioner asking him to submit his representation if any, against the report of the Tribunal, the matter was not brought to the notice of the High Court. The petitioner did submit his representation and thereafter the Governor passed the impugned order of dismissal without consulting the High Court. But, it appears that after serving a show cause notice on the petitioner asking him to submit his representation if any, against the report of the Tribunal, the matter was not brought to the notice of the High Court. The petitioner did submit his representation and thereafter the Governor passed the impugned order of dismissal without consulting the High Court. It was stated by the learned Chief Standing Counsel that after the receipt of letter, Annexure-B, dated 16-10-1974 from the High Court, the matter was never referred to the High Court, nor any recommendation of the High Court was obtained for dismissing the petitioner from service. There is nothing on the record to substantiate that the High Court was consulted by the Governor before passing the impugned order. By the letter dated 16-10-1971 the Registrar of the High Court had informed that the Court agreed with the findings recorded by the Administrative Tribunal. The matter, however, did not end there. The petitioner was thereafter served with a notice to show as to why the punishment of dismissal be not awarded to him. He made his representation accordingly. The matter should again have been referred to the High Court for securing its recommendation with regard to the punishment to be awarded to the petitioner. In the case of the High Court of Punjab and Haryana v. The State of Haryana, (1975 Lab IC 375) (SC) (supra) it was observed that 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 recommendation of the High Court to dismiss the petitioner from service is lacking. As the impugned order was passed by the Governor without the recommendation of the High Court it is unsustainable. 8. There is also merit in the petitioners contention that he was denied reasonable opportunity of defence when the Administrative Tribunal refused him the assistance of a trained lawyer. The petitioner did request the tribunal that he be permitted to engage a trained lawyer to conduct examination-in-chief and cross-examination of witnesses. The Tribunal, however refused to accede to this demand placing reliance on Rule 7 of the said Rules. The petitioner did request the tribunal that he be permitted to engage a trained lawyer to conduct examination-in-chief and cross-examination of witnesses. The Tribunal, however refused to accede to this demand placing reliance on Rule 7 of the said Rules. The vires of Rule 7 aforesaid came up for consideration in Amrish Kumar Sharma v. State of U. P., 1974 All WR (HC) 251 : (1974 Lab IC 1032). It was observed by the Division Bench in that case that any rule which absolutely prohibits a Government servant from taking assistance of a legal practitioner in the enquiry proceedings and does not leave any scope whatsoever for such representation would be ultra vires Art. 311 of the Constitution as the guarantee to defend himself by making an effective representation will be violated. The Division Bench, therefore, held that Rule 7 in the terms in which it has been enacted is repugnant to the guarantee conferred on a Government servant under Article 311 of the Constitution. It struck down the latter part of R. 7 reading as "and neither prosecution nor the defence shall have the right to be represented by counsel" as being ultra vires the Constitution. Rule 7 being ultra vires Article 311 of the Constitution was, therefore, wrongly relied upon by the Administrative Tribunal while refusing to the petitioner assistance of a trained lawyer. The petitioner was obviously not afforded reasonable opportunity of defence as contemplated by Article 311 of the Constitution. On this ground as well the impugned order cannot be sustained. 9. With regard to the third ground of attack referred to herein above, it may be pointed out that no arguments were advanced with regard to it and the submission could not be substantiated. I find no force therein. 10. No other point was urged. 11. In the result, I allow the petition with costs and quash the impugned order dated 27-5-1972 (Annexure B to the writ petition).