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2002 DIGILAW 20 (CAL)

PRIYABRATA GHOSH v. STATE OF WEST BENGAL

2002-01-18

ASHIM KUMAR BANERJEE, SAMARESH BANERJEE

body2002
S. BANERJEE, J. ( 1 ) ALL the appeals having been filed against the same judgment and order dated 5th of August, 1999 of the trial Court passed in the same writ proceeding being W. P. No. 254 of 1999, the appeals have been heard analogously and will be governed by the same judgment. ( 2 ) THE appeal No. 56 of 1999 has been preferred by the writ petitioner in W. P. No. 254 of 1999 who is a member of West Bengal Higher Judicial Service. ( 3 ) THE writ petitioner/appellant who at the relevant point of time, was posted as a Special Judge (E. C. Court)-cum-Additional District and Session Judge, South 24-Parganas, Alipore by the order dated 28th June, 1998 was transferred by the High Court as an Additional District and Sessions Judge, Islampur in the District of West Dinajpur. ( 4 ) PRIOR to that the petitioner made a representation to the Additional Registrar, High Court against the appointment of the respondent No. 6 who is junior to the petitioner in the post of District and Sessions Judge, Darjeeling. The aforesaid representation of the petitioner against such appointment of the respondent No. 6 was replied to by intimating him that the representation would not be considered at that stage. ( 5 ) AFTER the petitioner was so transferred to Islampur he made a representation against the same on 22nd June, 1998. Subsequently, on 20th August, 1998 he made another representation against the aforesaid order of transfer. In the second representation the petitioner being repentant and realizing that he made certain unintended language in his first representation, tendered apology for the same and withdrew his earlier representation. ( 6 ) NOT receiving any reply to his aforesaid representation the petitioner ultimately moved the Hon'ble Supreme Court under Article 32 of the Constitution challenging the aforesaid order of transfer. ( 7 ) BUT subsequently he withdrew the said application with liberty to move the Hon'ble High Court in its administrative side for redressal of his grievance. ( 8 ) THE petitioner thereafter made such a representation on 17th November, 1998 to the Hon'ble High Court in its administrative side. ( 7 ) BUT subsequently he withdrew the said application with liberty to move the Hon'ble High Court in its administrative side for redressal of his grievance. ( 8 ) THE petitioner thereafter made such a representation on 17th November, 1998 to the Hon'ble High Court in its administrative side. But the petitioner allegedly did not receive any reply and when he wanted to join his transferred post on 27th January, 1999 he was not allowed to join the same as in the meantime the aforesaid post of Additional District and Sessions Judge, Alipore and Additional District and Session Judge, Islampur were filled up by Officers who, according to the petitioner, were junior, were junior to him. The petitioner thereafter moved the writ application being W. P. No. 254 of 1999 praying for issue of a writ in the nature of Mandamus directing the respondent to promote the petitioner to the post of Additional District and Sessions Judge with retrospective effect from 16th of April, 1997 when the petitioner was superseded by the respondent No. 6 and further directing the respondents to determine the seniority of the petitioner as District and Sessions Judge with retrospective effect from such date and to pay him all perquisites and allowances attached to the post. ( 9 ) WHEN the aforesaid writ petition was moved upon notice to the respondents it was pointed out by the respondents that an order of suspension dated 5th of September, 1998 had been passed against the writ petitioner. Subsequently, pursuant to the order of trial Court dated 18th February, 1999 the petitioner was served with a copy of the order of suspension dated 5th September, 1998 and the petitioner pursuant to the liberty granted by the Court challenged such order of suspension by filing a supplementary affidavit. ( 10 ) SUCH order of suspension was challenged before the trial Court on two-fold grounds. Firstly, it was contended by the writ petitioner that the order of suspension not having been approved by the Full Court, such order is bad. Although in the affidavit-in-opposition the respondents contended that approval os such suspension order was obtained by circulation, it was the contention of the writ petitioner that approval of such order of suspension by the Full Court cannot be made in the manner aforesaid. Although in the affidavit-in-opposition the respondents contended that approval os such suspension order was obtained by circulation, it was the contention of the writ petitioner that approval of such order of suspension by the Full Court cannot be made in the manner aforesaid. ( 11 ) IT was also the contention of the writ petitioner that in view of the decision of the Supreme Court in the case of Rajat Baran Roy v. State of West Bengal and Ors. , reported in AIR 1999 SC 1661 the members of the West Bengal Higher Judicial Service will be treated at par with the members of the Indian Administrative Service in all matters and therefore the provisions of All India Service (Discipline and Appeal) Rules, 1969 will apply in the instant case and the said rule provides that order suspension passed on completion of a disciplinary proceeding shall not be valid unless before the expiry of 45 days from the date of order of suspension the disciplinary proceeding initiated or such order is confirmed by the Central Government, such order will be bad. ( 12 ) IT was contended that in the instant case such disciplinary proceeding not having been initiated with in 45 days of passing of the order of suspension and same not having been approved by the Central Government, the order of suspension is bad. ( 13 ) BY the impugned judgment and order the trial Court held against the writ petitioner on both the points. ( 14 ) THE trial Court although held the order of suspension to be valid further held that there was no justification why the disciplinary proceeding was not initiated till that date. The writ petition thereafter was disposed of by the trial Court by passing the following directions: ? (a) The charge-sheet against the petitioner must be submitted to the petitioner or to his advocate on record on/or before 20th August, 1999. In the event the charge-sheet is not so served it shall be deemed that there is a conclusion not to initiate disciplinary proceeding against the petitioner and, accordingly, the order of suspension will automatically stand revoked and the High Court Administration would be liable to immediately issue an appropriate posting order to the petitioner. (b) In the event, charge-sheet is served in terms as above, the petitioner must give reply thereto on/or before 27th August, 1999. (b) In the event, charge-sheet is served in terms as above, the petitioner must give reply thereto on/or before 27th August, 1999. The disciplinary proceeding, thereupon, must be completed on/or before 27th September, 1999 and the final order on the charges that may be leveled against the petitioner must be made and published on/or before 1st October, 1999 and shall be communicated to the petitioner or to his advocate on record on/or before 6th October, 1999. In the event for non-cooperation on the part of the petitioner, the disciplinary proceeding cannot be completed it shall be open to the High Court Administration to apply in this proceeding itself for extension of time to complete the disciplinary proceeding. In the event, despite cooperation on the part of the petitioner, disciplinary proceeding cannot be completed in terms as above, it shall be open to the petitioner to apply in this writ petition itself for revocation of the order of suspension. With these directions, this writ petition is disposed of. ? ( 15 ) THE other appeal being APOT No. 817 of 1999 has been filed by the Hon'ble High Court at Calcutta against the order dated 28th September, 1999 passed by the trial Court rejecting the application made by the present appellant for clarification of the judgment and order dated August 5, 1999. ( 16 ) IT is, however, necessary in our view, for proper appreciation of the ground of the said appeal, to explain the circumstances under which the appellant made such application for clarification. ( 17 ) A pointed out hereinbefore the writ petition was disposed of by the trial Court by giving a number of directions as to the issue of charge-sheet and submission of reply thereto within specific dated stipulated by the Court. It was the case of the appellant/high Court in the aforesaid application for clarification, inter alia, after explaining the reason why the charge-sheet could not be issued earlier, after the aforesaid decision of the trial Court disposing of the writ petition, the Registrar (Inspection-II) by a letter dated 16th August, 1999 forwarded charge-sheet to the writ petitioner. It was the case of the appellant/high Court in the aforesaid application for clarification, inter alia, after explaining the reason why the charge-sheet could not be issued earlier, after the aforesaid decision of the trial Court disposing of the writ petition, the Registrar (Inspection-II) by a letter dated 16th August, 1999 forwarded charge-sheet to the writ petitioner. But subsequently it was detected that such charge-sheet was a draft charge-sheet without any dated and without any signature and the writ petitioner took a stand that no charge-sheet as per direction of the trial Court was served upon him on 16th August, 1999 or thereafter till 20th August, 1999 and therefore it should be deemed that there was no intention to initiate disciplinary proceeding against the writ petitioner. The petitioner made such a representation to the Hon'ble Chief Justice. Therefore, the Registrar (Inspection-II) by his letter dated 31st August, 1999 issued a corrigendum dated 31st August, 1999 now rectifying the mistake in the previous charge-sheet by issuing a dated and signed charge-sheet. ( 18 ) BUT as rectified charge-sheet was issued on 31st August, 1999, therefore it became necessary for rescheduling of the dates for submission of the charge-sheet, submission of reply thereto and for conclusion of the enquiry. ( 19 ) THE aforesaid application was made by the appellant praying for extension of period of different stages of the enquiry. ( 20 ) IT will thus appear from the aforesaid application although the application was signed as an application for clarification, the same was really for modification of the judgment and order dated 5th August, 1999 for the purpose of extension of the aforesaid time schedule. ( 21 ) IT is, however, pertinent to note in this connection the writ petitioner, even, before disposal, of the aforesaid application replied to the said charge-sheet and the disciplinary enquiry was also concluded and when such application was taken up for hearing, the report of the enquiry was awaited. ( 22 ) THE trial Court by a judgment and order dated September 28, 1999 was of the view that the aforesaid corrigendum dated 31st August, 1999 was misconceived as the same could not be issued without obtaining the leave of the Court and on the basis of such corrigendum no proceeding could be continued. ( 22 ) THE trial Court by a judgment and order dated September 28, 1999 was of the view that the aforesaid corrigendum dated 31st August, 1999 was misconceived as the same could not be issued without obtaining the leave of the Court and on the basis of such corrigendum no proceeding could be continued. But at the same time it was held by the trial Court as the undated and unsigned charge-sheet was served upon the petitioner before 28th August, 1999, i. e. within the time stipulated by the Court and the reply thereto was given by the writ petitioner within the time stipulated by the Court, the objection which was raised by the writ petitioner against such charge-sheet in his representation made to the Hon'ble Chief Justice is misconceived. ( 23 ) IT was further held by the trial Court that under such circumstances the application made by the appellant/high Court is misconceived and accordingly such application was dismissed. 25. Against the aforesaid order dated 28th September, 1999 the writ petitioner has also preferred an appeal being APOT No. 795 of 1999 inter alia on the ground that the charge-sheet on the basis of which ultimately the enquiry was held was not at all a charge-sheet being an unsigned and undated one and was really a draft charge-sheet. ( 24 ) BEFORE going into the merits of all the appeals it is pertinent to note that the aforesaid disciplinary enquiry culminated in a final order by which the writ petitioner was awarded the punishment of withholding of one increment which again the writ petitioner has challenged in a separate writ proceeding which is now pending. The petitioner in the meantime has also been given a posting. ( 25 ) THE learned counsel appearing for the writ petitioner/appellant in support of appeal No. 565 of 1999 has assailed the order of the trial Court by raising the same contentions which were also raised before the trial Court. ( 26 ) BUT the entire challenge in the said appeal of the writ petitioner/appellant again is confined to the order of suspension, which, according to the appellant, was bad. ( 26 ) BUT the entire challenge in the said appeal of the writ petitioner/appellant again is confined to the order of suspension, which, according to the appellant, was bad. ( 27 ) ALTHOUGH the writ petitioner has addressed the Court on merit as to the legality and validity of the order of suspension, we are of the view that it has been rightly contended by the learned counsel appearing on behalf of the High Court that such appeal has really become infructuous. ( 28 ) ALTHOUGH the petitioner was put under suspension, in absence of a rule, the petitioner was paid his full salary and allowances. The suspension order was challenged on the ground that it was not approved by the Full Court and no disciplinary proceeding having been initiated within 45 days os issue of such order of suspension, the same became nonest. ( 29 ) THE Court, however, while disposing of the writ petition permitted the High Court to issue the charge-sheet and to initiate the disciplinary proceeding and permitted the writ petitioner to participate therein, which the petitioner did and such disciplinary proceeding thereafter culminated in a final order awarding a minor punishment upon the writ petitioner. ( 30 ) THE order of suspension therefore merged with such final order passed in the disciplinary proceeding. ( 31 ) ALTHOUGH the writ petitioner has challenged the aforesaid judgment and order as also the subsequent order dated 28th September, 1999, fact remains that the writ petitioner participated in the disciplinary enquiry without challenging the order by which the trial Court permitted the High Court to issue the charge-sheet and to initiate the disciplinary proceeding. The writ petitioner therefore submitted to the aforesaid order of the trial Court. ( 32 ) UNDER such circumstances whether such order of suspension was valid or invalid has become merely an academic question to which the Court may not go particularly when the order of suspension was passed not by way of punishment but in contemplation of a disciplinary proceeding and the petitioner was paid his full salary and allowance during the period of his suspension. ( 33 ) NOTWITHSTANDING such position since it was submitted that the point on which the order of suspension was challenged is indeed important and therefore the Court should come to a decision we proceed to examine the order of the trial Court on merits. ( 33 ) NOTWITHSTANDING such position since it was submitted that the point on which the order of suspension was challenged is indeed important and therefore the Court should come to a decision we proceed to examine the order of the trial Court on merits. ( 34 ) AS to the first contention of the appellant that the order of suspension was bad as it was approved by Full Court, we do not find any merit in such contention. ( 35 ) FROM the affidavit-in-opposition filed before the trial Court it will appear that after the Administrative Committee took decision to put the writ petitioner under suspension, the same was circulated by the Hon'ble Chief Justice to all the Hon'ble Judges inviting the objections, if any, within certain time and no objection was raised. The decision therefore of the Administrative Committee was approved by the Full Court by circulation. It has been rightly held by the trial Court that meeting of Full Court was held by circulation and that is quite permissible. That apart notwithstanding the objection of Justice D. P. Sarkar- dated 10th September, 1998 in Full Court in its meeting held on 29th June, 1999 resolved to implement the resolution of the Administrative Committee dated 1st September, 1998. ( 36 ) AS to other contention of the appellant that in view of the decision of the Supreme Court in the case of Rajat Baran Roy v. State of West Bengal (supra) and the Government Order dated June 20, 1992 the members of the Higher Judicial Service are to be treated at par with the members of the Indian Administrative Service in all matters and therefore All India Service (Discipline and appeal) Rules, 1969 for the members of the Indian Administrative Service will also be applicable to the members of the West Bengal Higher Judicial Service and therefore no disciplinary proceeding having been initiated within 45 days of order of suspension in terms of the aforesaid Rules, the order of suspension is bad, is not tenable. ( 37 ) IN the aforesaid case of Rajat Baran Roy (supra) the issue before the Supreme Court was when in view of the Government order of the State of West Bengal dated 20th June, 1992 the State Government applied the change of service condition as per the office memorandum dated 15th May, 1998 to the members of the Higher Judicial Service automatically, whether such change in the age of retirement will also become applicable to the members of the West Bengal Higher Judicial Service. In other words, when the retirement age of the Officers of the Indian Administrative Service stood extended from 58 years to 60 years the retirement age of the members of the West Bengal Higher Judicial Service will also automatically be extended from 58 years to 60 years when the State Government applied the changed service condition as per the aforesaid memorandum dated 15th of May, 1998. The Supreme Court answered the said issue in the affirmative. ( 38 ) IT will thus appear from the said judgment that it was never as issue before the Supreme Court as to whether in view of the Government order dated 20th June, 1992 the members of the West Bengal Higher Judicial Service would be treated at par with the members of the Indian Administrative Service in all matters, and the Discipline and Appeal Rules framed for the members of the Indian Administrative Service will also apply to the members of the West Bengal Higher Judicial Service. ( 39 ) IT has rightly been contended by the learned counsel appearing on behalf of the High Court that under Article 235 of the Constitution the control of the sub-ordinate judiciary is vested on the High Court. As held by the Supreme Court in the case of Chief Justice, A. P. v. I. V. A. Diskshitulu, reported in 1979 (2) SCCC 34 (para 40) = AIR 1979 SC 193 such control over the subordinate judiciary vested in the High Court is exclusive in nature, comprehensive in extent and effective in operation and it comprehends wide variety of matters including suspension from service of a member of the judiciary with a view to hold a disciplinary enquiry. ( 40 ) IN the case of Baradakanta Mishra v. High Court of Orissa and Anr. ( 40 ) IN the case of Baradakanta Mishra v. High Court of Orissa and Anr. , reported in AIR 1976 SC 1899 it was held that the word 'control' as used in Article 235 includes disciplinary control over District Judges and Judges inferior to the post of District Judge. It was further held that the word 'control' includes something in addition to the mere superintendence of these Courts, but it is over the conduct and discipline of Judges. The High Court alone can make enquiries into disciplinary conduct within the power and control vested under Article 235 of the Constitution, therefore, the High Court can hold disciplinary proceeding against the members of the Higher Judicial Service and can also recommend the imposition of punishment of reduction in rank and dismissal which is exercisable by the Governor. ( 41 ) IT will thus appear in view of the Article 235 of the Constitution, as interpreted by the aforesaid judgments of the Supreme Court, the control of the sub-ordinate judiciary having vested in the High Court, jurisdiction of the High Court to exercise disciplinary power over members of the Higher Judicial Service including passing an order of suspension, initiation of a disciplinary proceeding and to impose punishment upon them is exclusive. ( 42 ) THE aforesaid Government order dated 20th June, 1992 in which it was stated that the members of the West Bengal Higher Judicial Service are treated at par with the members of the Indian Administrative Service in all matters, which was referred to in the aforesaid Supreme Court decision in the case of Rajat Baran Roy v. State of West Bengal (supra) cannot mean that even in the matter of exercise of disciplinary power over the members of the West Bengal Higher Judicial Service Rules framed for the members of the Indian Administrative Service in respect thereof will also apply to the members of the West Bengal Higher Judicial Service, notwithstanding the fact that under Article 235 of the Constitution the control of the sub-ordinate judiciary is vested on the High Court. ( 43 ) THE expression ?in all matters? as used in said Government order dated 20th June, 1991 cannot include the contract of the subordinate Judiciary and consequently, disciplinary matters of the Higher Judicial Service for the simple reason that such executive order cannot overside Article 235 of the Constitution. ( 43 ) THE expression ?in all matters? as used in said Government order dated 20th June, 1991 cannot include the contract of the subordinate Judiciary and consequently, disciplinary matters of the Higher Judicial Service for the simple reason that such executive order cannot overside Article 235 of the Constitution. ( 44 ) THE learned counsel appearing for the writ petitioner/appellant tried to contend that the said Rules framed for the members of the Administrative Service will apply as it has been held that such control of the High Court is subject to condition of service and right of appeal of the members of the West Bengal Higher Judicial Service. ( 45 ) WE do not find any merit in such submission. ( 46 ) APART from the fact that when and how the suspension order can be passed and how the disciplinary proceeding can be initiated against the members of the Judicial Service is not their condition of service, observation of the Supreme Court that the control by the High Court of the sub-ordinate judiciary will be subject to the service condition and right of appeal does not mean that same will be in derogation of the exclusive jurisdiction of the High Court over the members of the sub-ordinate judiciary in disciplinary matters. For the reasons aforesaid we do not find any merit in the appeal and the same is hereby dismissed. There will be no order as to costs. As to the other two appeals namely one filed by the High Court against the order dated 28th of September, 1999 and the other appeal filed by the writ petitioner against the self-same order, we are of the view that the anxiety of the High Court administration praying for extension of time schedule in the matter of issue of charge-sheet and initiation of disciplinary enquiry was quite justified. Fact remains although the charge-sheet was issued within the time stipulated by the Court and the writ petitioner replied to the charge-sheet also, such charge-sheet was an unsigned one. In such view of the matter it cannot be said that the objection raised by the writ petitioner against such charge-sheet was unjustified. Fact remains although the charge-sheet was issued within the time stipulated by the Court and the writ petitioner replied to the charge-sheet also, such charge-sheet was an unsigned one. In such view of the matter it cannot be said that the objection raised by the writ petitioner against such charge-sheet was unjustified. Since the charge-sheet which was not signed by the appropriate authority it was open to the writ petitioner to contend that such charge-sheet was not a charge-sheet at all and therefore the High Court administration did not issue the charge-sheet within the time stipulated by the Court and therefore no disciplinary enquiry can be held. Under such circumstances in our view it would have been better for the learned Judge to allow the extension of the time schedule as prayed for in the aforesaid application for clarification after issue of the corrigendum, particularly when the learned Judge was of the view that such corrigendum could not have been issued extending the time for reply without obtaining a leave from the Court. ( 47 ) TO avoid all unnecessary complications and multiplicity of litigation we therefore hold that even though the charge sheet which was issued within the stipulated by the trial Court was unsigned and undated, by issuing such a charge sheet there was substantial compliance of the order of the trial Court to issue the charge-sheet within the stipulated time and in view of the fact that the writ petitioner replied to the said charge-sheet and subsequently the aforesaid corrigendum was issued, such charge-sheet will be deemed as a valid and proper charge-sheet. The impugned order of the trial Court therefore is modified to the extent indicated above and the appeal is thus disposed of accordingly. In the view of our decision as aforesaid in abovementioned appeal the other appeal filed by the writ petitioner against the judgment and order dated 28th of September, 1999 fails and the same is hereby dismissed. There will be no order as to cost. Learned counsel appearing for the writ petitioner/applicant prays for stay of operation of the order, such prayer is considered and rejected. Urgent xerox certified copies be supplied expeditiously to the parties if applied for. A. K. Banerjee, J.- I agree. Appeal disposed of