Judgment :- 1. The petitioner entered the Judicial Services as a Judicial Second Class Magistrate in the year 1967. He was appointed as District Munsif in the year 1971. He was promoted and posted as Sub-Judge in the year 1979. On 1.7.1988, disciplinary proceedings were initiated against him and the District Judge, Madurai, was appointed as Enquiry Officer to conduct the Enquiry. A Charge Memo was issued by the Enquiry Officer on 23.8.1988 under R 17-(b)of the Tamil Nadu Civil Services (Classification, Control and Appeal) Rules, (hereinafter called the C.C.A. Rules). On 5.9.1988, the petitioner submitted his explanation. The two charges framed against the petitioner were as follows. “(1) That you, Thiru S. Srinivasagam, formerly Prl. Sub Judge, Tirunelveli now sub Judge, Srivilliputhur while you were functioning as Prl. Sub Judge Tirunelveli, demanded a sura of Rs 60,000 on 3-4-87 as bribe from one Thiru E Sankara Subbu, Director of Shiva Kumara Spinning Mills, Tirunelveli, who is one of the parties to the suits in O.S. 77/81, 112/81, 115/81 and 119/81 for decreeing the above suits and other 4 connected suits (total 8 suits) in his favour and the said E. Sankara Subbu and his broth er Gopalakrishoan met the delinquent Officer on 3-4-1987 and bargained for Rs 35,000 and on the night of 16-4-87 they have paid Rs. 10,000 as advance but the delinquent Officer gave back the sum of Rs. 10.000 saying that he would deliver the Judgment only after vacation and asking them to meet him after a month but has suddenly pronounced Judgment on 24-9-87 against him that it is apprehended that since he was not in a position to pay Rs. 35,000 you had received huge amount from the other side and hurriedly pronounced Judgment. Thus you had contravened R. 20 of the Tamil Nadu Government Servants, Conduct Rules, 1973. 2. That you Thiru S. Srinivasagatn, while functioning as Sub Judge, Srivillipathur approached one Tmt. Vimala Miranda, Petitioner in M.C.O P. No. 200/85 on the file of Sub Judge Srivilliputhur (in which compensation of Rs 4,00,000 was claimed) through the M.C.O.P Clerk and asked the petitioner whether she was prerpared to offer 10% of the claim amount to the Sub Judge as bribe for which the petitioner refused and on 29-8-87 one person representing as the agent of Thiru S. Srinivasagam, Sub-Judge approache d the petitioner in her house and demanded a sum of Rs. 5,000 as advance to be paid to the Sub Judge and thus contravened R. 20 of the Tamil Nadu Government Servants Conduct Rules, 1973.” The petitioner filed a written statement on 5.12.1988 On 6.1.1989, three witnesses were examined and on 30.1.1989, the fourth witness was examined. The Enquiry Officer submitted his Report on 31.3.1989. The Report was placed before a Committee of two learned Judges of this Court. The Enquiry Officer had held that the charges had not been proved. Both the learned Judges constituting the Committee agreed with the findings of the Enquiry Officer on 16.6.1989 and 18.6.1989. However, when the matter was placed before the Full Court of the learned Judges, it was decided on the basis of an observation made in the Enquiry Report of the Enquiry Officer, that the High Court was of the view that the Enquiry Officer will have to secure the evidence of one Vanamamalai for a proper appreciation of the evidence already recorded, and that the delinquent Officer will be afforded an opportunity to cross-examine the said witness. The High Court also directed the evidence so recorded to be submitted to the High Court on or before 16.8.1989. Accordingly, the said Vanamamalai was examined as P.W. 5 and the petitioner cross-examined the witness and the evidence was forwarded to the High Court. The matter was placed before the very same Committee consisting of the very same two learned Judges On 19.9.1989 one of the members of the Committee bad elaborately discussed the evidence and came to the conclusion that the first charge stood proved. However, the second charge was held not to have been proved. The other learned Judge of the Committee agreed with this finding on 24 9.1989. Thereafter, the matter was placed before the Full Court on 29.9.1982 and it was unanimously resolved that the punishment of dismissal from service should be imposed on the petitioner. Consequently, the impugned order dated 6.10.1989 was issued by the respondent on behalf of the High Court. It is the validity of the said order which is questioned in this writ petition. Actually a writ of certiorarified mandamus is sought for to quash the said order dated 6.10.1989 and to direct the respondent to reinstate the petitioner with all attendant benefits, arrears of pay and continuity of service. 2. Mr. It is the validity of the said order which is questioned in this writ petition. Actually a writ of certiorarified mandamus is sought for to quash the said order dated 6.10.1989 and to direct the respondent to reinstate the petitioner with all attendant benefits, arrears of pay and continuity of service. 2. Mr. P. Chidambaram, learned counsel for the petitioner has raised several points in support of the writ petition, and each of the propositions of law has been sought to be answered by the respondent both in the counter affidavit and by way of arguments at the hearing. I will take up each point and the answer to the points and give my findings one by one, 3. The first contention of the learned counsel for the petitioner, even though comprise of seven propositions of law, relates only to one cardinal point, that is, whether the High Court had jurisdiction to impose the punishment of dismissal, having regard to the constitutional and statutory provisions of law. We must, therefore, start with the constitutional provisions. The relevant articles are Arts. 234 and 235 of the Constitution of India. The statutory Rules are The Tamil Nadu State Judicial Services Rules (hereinafter called ‘The State Rules’) framed under Art. 234 and the proviso to Art. 309 of the Constitution of India and the C.C.A Rules framed under proviso to Art. 309 of the Constitution of India. For a better under standing of the rules, I will extract the necessary provisions: Article 234 of the Constitution of India is a follows:— “234. Appointments of person other than district Judges to the Judicial Service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consulation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such state.” Article 235 of the Constitution of India is as follows:— “235. The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the Judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may 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.” Rule 2 (b)(2) of the State Rules reads as follows: — “2(b) (2) ‘Appointing authority. ‘—’ Appointing authority means — (a) in the case of appointment to the post of District Munsif or to the post of Additional Judge of the City Civil Court, the Governor; and (b) in the case of promotion of a District Munsif as a Subordinate Judge, the High Court.” Rule 2(b) (13) of the State Rules reads as follows: “(13) ‘Promotion’— ‘Promotion’ means the appointment of a District Munsif, as a Subordinate Judge.” Rule 4 (ii) of the State Rules reads as follows: “(ii) The posts of Subordinate Judges shall be filled by Promotion from District Munsif. All promotions shall be made on grounds of merits and ability, seniority being considered only where merit and ability are approximately equal.* Rule 4-A of the State Rules as introduced by G.O.Ms No. 1423, Home (Courts I) Department dated 20.6.1988 is as follows;— “VI(a), Special Provisions with respect to direct recruitment of Subordinate Judges:— (1) Notwithstanding anything contained in R. 4, the vacancies which exist on 3-5-88 in the category of Subordinate Judge shall be filled up both by direct recruitment and by promotion from the category of District Munsif in the ratio of 1:1 and the provisions of other rules applicable to the holder of the post of Subordinate Judge shall, subject to the following modifications, apply to the Subordinate Judge, directly recruited. 2. The selection for appointment to the category of Subordinate Judge shall be made by the High Court, Madras and the appointment thereto shall be made by the Governor. 3. 2. The selection for appointment to the category of Subordinate Judge shall be made by the High Court, Madras and the appointment thereto shall be made by the Governor. 3. xxxxxxxxxx.” Rule 12(1)(2) of the C.C.A. rules is as follows: “12(1) The State Government may impose any of the penalities specified in items (i) and (iii) to (viii) in R. 8 of on members of the State Service; 2. Notwithstanding anything contained in these rules and in Appendix IV the Heads of Departments concerned may impose any of the penalties mentioned in items (i). (iii) in so far as it relates to withholding of increments and (v) in R.(8) on all members of the State Service other than such member who are immediately below such Heads of Depart merits. Vide G.O.Ms. No. 185, P. and A.R. dated 12-3-88. Provided that if the Governor of Tamil Nadu is himself the appointing authority for any service or a class or category thereof, he may himself impose any of the said penalties on members of that service, class or category, as the case may be.” 4. The arguments that Art 234 of the Constitution of India is very clear that the appointment of Persons other than District Judges shall be made by the Government of the State. No doubt, the appointment will be in accordance with Rules made by the Governor in consultation with the Tamil Nadu Public Service Commission and the High Court But the emphasis is that the appointment is only made by the Governor. The control talked of in Art. 235 relates only to posting and promotion and the grant of leave and these powers are vested exclusively with the High Court. Therefore, the State Rules cannot purport to make the High Court, the Appointing Authority, Rule 2(b) of the State Rules should, therefore, be under stood in the context of the constitutional provisions as well as R. 4A and R. 12 of the C.C.A. Rules. According to Mr. P. Chidambaram, learned counsel for the petitioner, there are only three places in the state Rules which refer to the Appointing Authority. They are R. 11, R. 16E and 20. Therefore, the definition in Rule 2(b) of the State Rules in only with reference 10 the said three rules and, so read, the Constitutional Provision as contained in Art, 234 is not violated. They are R. 11, R. 16E and 20. Therefore, the definition in Rule 2(b) of the State Rules in only with reference 10 the said three rules and, so read, the Constitutional Provision as contained in Art, 234 is not violated. The subsequent introduction of R 4B though relates only to direct recruitment of Subordinate Judges, makes it very clear that the Selection for appointment to the category of Subordinate Judge shall be made by the High Court and the appointment tht reto shall be made by the Governor. There cannot be different provision of law for Subordinate Judes directly recruited and subordinate judge promoted from the rank of District Munsifs. To construe R 2(b) of the State Rules as providing one appointing authority for proraotee Subordinate Judge and another appointing authority for directly recruited Subordinate Judges will be doing violence to the provisions of law. Therefore, such an interpretation should be avoided and R. 2(b) should be read down to be applicable only to Rr. 11, 16E and 20, of the State Rules. Further, R. 12 of the CCA. Rules also says it is only the Government which can pass any of the major punishments. Alternatively, Mr. P. Chidambaram argues, even assuming that the High Court is the Appointing Authority for promotee Subordinate Judges, there is nothing wrong in the CCA. rules providing for a separate disciplinary authority to impose major punishment and the same will not violate Art. 311(1) of the Constitution of India. 5. In support of the contention Mr. P. Chidambaram relies on the decision in B. Mishra v. Orissa High Court 1. That was a case where one Mishra was appointed as District Munsif. He was later, promoted as a Sub-Judge. A separate cadre with the designation of Additional District Munsif (Judicial) was created by the Government and the said Mishra was appointed to that cadre. That cadre is admittedly below the rank of a District Judge. The question involved in that case related to reversion of Mishra from the special cadre to the rank of sub judge on 15.1.1963. The writ petition against the said reversion order was dismissed by the High Court of Orissa and the Special Leave Petition was also dismissed. On 5.2.1968 Mishra was again appointed by the High Court exercising power under R 10 of the Orissa Superior Service Rules, 1963 as Additional District Magistrate (Judicial). The writ petition against the said reversion order was dismissed by the High Court of Orissa and the Special Leave Petition was also dismissed. On 5.2.1968 Mishra was again appointed by the High Court exercising power under R 10 of the Orissa Superior Service Rules, 1963 as Additional District Magistrate (Judicial). On 31.7.1968, Mishra was appointed as Additional District Judge by the Governor of the State. On 8.12.1972, against the punishment of reduction in rank was imposed from Additional District Judges to Additional District Magistrate. The order was passed by the High Court in pursuance of the control vested under Art. 235 of the Constitution of India. Due to certain irregularities committed as Additional District Magistrate, enquiry was conducted and the High Court imposed the punishment of dismissal on Mishra. This order was again passed in exercise of the powers under Art. 235 of the Constitution of India. The question, therefore, was whether the order passed by the High Court was valid. The following observations are relied on by the petitioner: “24. The High Court within the power and control vested under Art. 235 could hold disciplinary proceedings against the appellant and could recommend the imposition of Punishment of reduction in rank of 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.” In Braja Kishore Das v. The Stale of Orissa, 2 it was held that in the case of a Subordinate Judge, the authority to pass the order of punishment is the State Government. 6. As against the above arguments, it is contended on behalf of the respondent that the State Rules having been framed in exercise of the powers under Art 234 of the Constitution of India should be accepted as the law on the subject. Therefore, Rule 2(b) of the State Rules should be given the full meaning and in respect of the promotee Subordinate Judge, it the High Court which is the appointingauthority. The Governor in making the rules has invested the High Court with tbe power to appoint Subordinate Judges by promotion from the rank of District Munsif. Therefore, it is contended that R. 2(b) cannot be confined only to Ro. The Governor in making the rules has invested the High Court with tbe power to appoint Subordinate Judges by promotion from the rank of District Munsif. Therefore, it is contended that R. 2(b) cannot be confined only to Ro. 11, 16E and 20 of the State Rules. It is specifically argued that. R 4A as introduced by G O.Ms No 1423. dated 20.6.1988, is only in respect of direct recruitment of Subordinate Judges and it will not be applied to the promotee Subordinate Judge. The respondent has not met the arguments based on R 12 of the C C.A. rules. That apart, I may also advert to the recent decision of the Supreme Court in Registrar, High Court of Madras v. R. Rajiah 3 No doubt that cases relates only to the compulsory retirement of two District Munsifs. In that case, the order of Compulsory retirement was made by the High Court whereas R. 56-d of the Fundamental Rules only enables the appointing authority namely, the Government to exercise the power. After considering all the earlier Judgments the Supreme Court held as follows: “17. The control of the High Court, as understood, will also be applicable in the case of compulsory retirement in that the High Court will, upon an enquiry, came to a conclusion whether a member of the subordinate Judicial service should be retired prematurely or not. If the High Court comet to the conclusion that such a member should be Prematurely retired, it will make a recommendation in that regard to the Governor inasmuch as the Governor is the Appointing Authority. The Governor will make a formal order of compulsary retirement in accordance with the recommendation of the High Court.” On a consideration of all the points raised by the Counsel for the petitioner as well as the respondent, I am inclined to hold that the appointing authority in respect of Subordinate Judges can only be the Governor and not the High Court. I am of the opinion that if the argument of the respondent is accepted, the position will be that the appointing authority, in respect of a promotee subordinate Judge, is the High Court and the appointing authority in respect of a directly recruited subordinate Judge is the Governor. Such a state of affairs will be very anomalous. Accordingly, an interpretation which will harmonize with the apparent inconsistencies should be adopted. Such a state of affairs will be very anomalous. Accordingly, an interpretation which will harmonize with the apparent inconsistencies should be adopted. To me, it appears, that the sub-rule 2 of R 4A introduced in GO.Ms. No. 1423, dated 20.6.1988 should be applied in respect of promotee Subordinate Judge also. In other words, the selection for promotion shall be made by the High Court and ihe appointment accepting the recommendation of the High Court, should be made by the Governor. I am also in agreement with the submission made by Mr. Chidambaram that in any event, R. 12 of the C.C.A. Rules cannot be ignored. According to the said rule, it fs only the Governor who can pass an order of major punishment. 7. In the counter affidavit, there is also a reference to the decision in Chief Justice of A.P. v. L.V.A. Dikshitulu 4 In that case, the Supreme Court was concerned with an order of premature retirement. The Supreme Court held an order of premature retirement, simpliciter does not amount to a dismissal or removal or reduction in rank within the meaning of Art. 311 of Constitution of India. Even so, it was held that the ultimate order should be passed by the Governor, though the Governor is bound to accept the recommendation of the High Court. Tbe Supreme Court in that case categorically held after referring to the word s “posting” “appointment” and “promotion” and after referring to Article 234 and 235 held, as follows in respect of the scope of the power of the High Court in taking disciplinary proceedings:— “Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the Matter of appointment, dismissal, removal, reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges, In the exercise of this control, the High Court can hold inquiries against a member of the subordinate judiciary, impose Punishment other than dismissal or removal, subject however, to the conditions of service, and a right of appeal, if any, granted there by and to the giving of an opportunity of showing cause as required by Art. 311(2).” 8. Though my finding on the first and foremost question involved in the writ petition is sufficient to dispose of the writ petition, it is but proper that I give ray findings on the other points raised in the writ petition. The second point relates to the examination of. P.W. 5 at the instance of the direction of the Full Court. Learned Counsel says that the CCA. rules do not contain any power vesting with the disciplinary authority to direct the Enquiry Officer to examine an additional witness and submit the record of evidence for the consideration of the Disciplinary Authority. Learned Counsel argues that the Central Civil Services (Classification and Appeal) Rules do provide a machinery in the form of Rules 14 and 5. But the argument, is if such a power is conceded in the disciplinary authority by way of analogy, then the disciplinary authority should have asked the Enquiry Officer to submit a finding on the basis of the evidence of the additional witness. In this case, the direction was only to send the record of evidence and there was no second enquiry report by the Enquiry Officer. Rightly it is argued that the delinquent officer had no opportunity at all to question the veracity and the relevancy of the evidence of P.W. 5. He had no forum before which he could question the evidence of P.W. 5. In my opinion, this argument is well taken and to that extent there is certainly violation of the principles of natural justice. Along with this point, I can deal with the other point that the Enquiry Report was not furnished to the petitioner before the impugned order was passed. It is not necessary for me to go through the entire catalogue of cases on this point because the Judgment of the apex court in Union of India and others v. Mohd. Ramzcn Khan 5, has set the controversy at rest. Therefore, if the Enquiry Report ought to have been furnished to the petitioner, it goes without saying that there must have been an enquiry report after the examination of P.W 5 and inasmuch as there was no report at all after the examination of P.W. 5, the disciplinary proceedings are vitiated. In this case, admittedly even in respect of the first enquiry report, the same was not furnished to the petitioner before the impugned order was passed. 9. In this case, admittedly even in respect of the first enquiry report, the same was not furnished to the petitioner before the impugned order was passed. 9. So far as the other factual conten tions urged by Mr. P. Chidambaram that after P.W. 5 was examined, only one learned Judge has expressed his opinion and there is no proof that the other learned Judge had also expressed his opinion are concerned, I find that the records do not bear out such a case. I find that the opinion expressed by one learned Judge has been agreed to by the other learned Judge and the records bears ample testimony to this. I am not also impressed with the arguments questioning the decision of the Committee as well as the Full Court in accepting the evidence of P.W. 5 and holding the petitioner guilty of the first charge. It is now well settled that the High Court cannot go into the factual assessment of evidence by the Disciplinary Authority. Rightly, the learned counsel for the respon dent relies on the judgment of the Supreme Court in Kailash Chander Asthana v. State of U.P. & others. 6 But I have already held that the petitioner had no opportunity to question the veracity and relevency of the evidence of P.W 5, On this ground, I have already held that the proceedings are vitiated. 10. For all the above reasons, the writ petition is allowed as prayed for. Rule Nisi is made absolute. There will, however, be no order as to costs.