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2005 DIGILAW 184 (KER)

P. Glory Fernandez v. The Registrar

2005-03-01

A.K.BASHEER, B.SUBHASHAN REDDY

body2005
Judgment :- Basheer, J. Is the dismissal of the appellant from Criminal Judicial Service legally and constitutionally valid? 2. The above question was answered in the affirmative by the learned single Judge Hence this writ Appeal. 3. The appellant was working as Judicial Magistrate of First Class. He was dismissed from service after it was found in the domestic enquiry that he was guilty of the charges levelled against him. On December 7, 1987, the Registrar of the High Court had passed Ext.P11 order of dismissal. Though the appellant preferred an appeal against the above order before the Governor through the Registrar, it was not forwarded by the High Court on the ground that an appeal was not maintainable against the order in question. The matter was taken up before the Supreme Court. By order dated July 21, 1997 in Civil Appeal No. 4978 of 1997 the Supreme Court held that an appeal against the above order would lie to the Governor. Accordingly, the appeal filed by the appellant was forwarded by the High court to the Governor. The appeal was considered by the Governor and it was dismissed by order dated June 29, 1999, a copy of which is on record as Ext.P14. 4. The appellant challenged Exts. P11 and P14 orders before the learned single Judge. But the original petition was dismissed by the learned Judge holding that there was no merit in any of the contentions raised by the appellant. 5. We have heard Sri. Abraham Vakkanal, learned counsel for the appellant and Sri. V. Giri, learned counsel appearing for respondent No.1, the Registrar of the High Court. 6. Learned counsel for the appellant contends that Ext.P11 order of dismissal passed by respondent No.1 is illegal and without jurisdiction. The appellant who was a member of the Kerala Criminal Judicial Service was appointed by the Governor of the State as provided under Article 234 of the Constitution of India. Therefore the appellant could have been dismissed only by the Governor. It is further contended that the disciplinary authority as well as the appellate authority and egregiously erred in accepting the findings of the Enquiry Officer which were based entirely on conjectures and surmises. Therefore the appellant could have been dismissed only by the Governor. It is further contended that the disciplinary authority as well as the appellate authority and egregiously erred in accepting the findings of the Enquiry Officer which were based entirely on conjectures and surmises. Since the order of dismissal passed by respondent No.1 was without jurisdiction, the inherent defect of lack of jurisdiction would not get cured even if the appellate authority had ultimately considered the correctness of the above decision. 7. But learned counsel for respondent No.1 submits that the appellate authority had considered the order of the disciplinary authority on its merits. The authority had arrived at the conclusion that the dismissal of the appellant was legally valid in the facts and circumstances of the case. Therefore it is contended by the learned counsel that the challenge against the order of dismissal is wholly misconceived. 8. It is not in dispute that the order of dismissal of the appellant from service was passed by the High Court on the administrative side after holding an enquiry. It is also the admitted position that the appellant had preferred the appeal as provided under Note 1 to Rule 23 of the Kerala Civil Services (Classification, Control and Appeal) Rules. The appellate authority had considered all the contentions and passed the order on its merits. Thus the appellant cannot have a grievance that the statutory remedy of appeal has been denied to him. 9. But the only question that arises for consideration is whether the order passed by the disciplinary and appellate authority is liable to be set aside since the disciplinary authority had exceeded its jurisdiction and passed an order of dismissal rather than recommending the dismissal of the appellant to the appellate authority, who had appointed the appellant. While reiterating the settled position that the High court is vested with the disciplinary control over the members of judicial service exclusively, the Supreme Court has categorically held that formal order of dismissal, removal, termination of service etc., of a Judicial Officer can be issued only by the Governor and not by High Court. (See Registrar (Admn.) v. Sisir kanta Satapathy (1999) 7 SCC 725.) In view of the above settled position, Ext. P11 order passed by the High Court dismissing the appellant from service cannot be held to be valid in the eye of law. 10. (See Registrar (Admn.) v. Sisir kanta Satapathy (1999) 7 SCC 725.) In view of the above settled position, Ext. P11 order passed by the High Court dismissing the appellant from service cannot be held to be valid in the eye of law. 10. But in T. Lakshmi Narasimha Chari v. High Court of A.P. (1996) 5 SCC 90 their Lordship have held that the recommendation of the High Court for the removal of a judicial officer after he was found guilty in a departmental enquiry would be binding on the Governor. 11. It is true that the High Court should have only recommended the dismissal of the appellant after he was found guilty in the domestic enquiry. Apparently the High Court had, on the administrative side, passed an order exceeding its jurisdiction. But as is revealed from Ext.P14 appellate order, the appellate authority had sought for the views of respondent No.1 while considering the appeal preferred by the appellant. Respondent No.1 had conveyed its views and recommendations to the appellate authority. These views or recommendations were considered by the appellate authority while passing the order. It was on consideration of the recommendations of respondent No.1 that the appellate authority had passed Ext.P14 order accepting the recommendation for dismissal This procedure is strictly in accord with the dictum laid down by their Lordship of the Supreme Court in Lakshmi Narasimha Chari’s case (supra). In that view of the matter the contention raised by the appellant that Exts. P11 and P14 orders are bad in the eye of law cannot be sustained. Even though respondent No.1 had ordered dismissal of the appellant from service, the said order can be construed and treated only as a recommendation. We are supported in taking this view by the decision of their Lordships in Lakshmi Narasimha Chari’s case supra. 12. Learned counsel for the appellant has invited our attention to a decision of their Lordships of the Supreme Court in Registrar (Admn.) v. Sisir Kanta Satapathy (1999) 7 SCC 725 and contended that the appellants authority ought to have allowed the appeal and set aside the order of the Registrar of the High Court since the said order was without jurisdiction. But in our view the above contention is untenable, especially in view of the finding entered by us in the earlier part of this judgment that the order passed by respondent No.1 can be treated only as a recommendation. 13. It is then contended by learned counsel that the learned single Judge was not justified in holding that the appellant could not have raised the question of jurisdiction of respondent No.1 in passing Ext.P11 order for the first time in the original petition under Article 226 of the Constitution. Learned counsel has invited our attention to the decision in Rattan Lal Sharma v. Managing Committee ((1993) 4 SCC 10) and contended that there is no bar in raising a new plea if it goes to the root of the mater and if it is based on admitted and uncontroverted Facts. There cannot be any dispute about the above principle of law. Therefore it cannot be said that the appellant was not justified in raising the question of jurisdiction and power exercised by respondent No.1 to remove the appellant from service. 14. The appellant has also assailed the finding of the learned single judge that the appellant being in Criminal Judicial Service, he cannot be treated as member of judicial service as provided under Article 234 of the Constitution. But it is the admitted position that by virtue of SRO.760/73 issued in exercise of the powers conferred by Articles 234 and 237 of the Constitution of India, read with sub section (1) of Section 2 of the Kerala Public Services Act 1968, the Governor had made the Kerala Criminal Judicial Service Rules which are applicable to the Judicial Magistrates in the state, bringing them within the purview of Part VI of Chapter VI of the Constitution. In that view of the mater there cannot be any dispute that the appellant is a member of Judicial service as contemplated under Article 234 of the Constitution and the Governor is the appointing authority. 15. The other contention raised by the appellant is that the findings of the Enquiry Officer are entirely based on conjectures and surmises and therefore the disciplinary authority as well as the appellate authority were not justified in relying on them. The above contention was raised by the appellant before the learned Single Judge also. But this contention was repelled by the learned single Judge. Rightly in our view. The above contention was raised by the appellant before the learned Single Judge also. But this contention was repelled by the learned single Judge. Rightly in our view. The findings entered by the disciplinary authority were entirely based on facts and materials tendered in evidence. The appellate has no case that he was not given sufficient opportunity to defend himself before the Enquiry Officer. We do not find any reason to go into those questions of fact, since they are not within the realm of jurisdiction under Article 226 of the Constitution of India. Therefore the contention raised by the appellant in the regard is also liable to be rejected. We do so. 16. Having regard to the entire facts and circumstances we are satisfied that the order of dismissal passed by respondent No.1 and affirmed by the appellate authority does not suffer from any illegality or infirmity. Therefore the question raised in the writ appeal is answered in the affirmative. The writ appeal fails and it is accordingly dismissed. However, in the facts and circumstances of the case, the parties are directed to suffer their respective costs.