KUMARA MENON Vs. STATE OF KERALA

JUDGEMENT

(1.) THE sweep of the power of control over District Courts and Courts subordinate thereto by the High Court under Art. 235 of the constitution of India must be taken as well settled by now. Though the term 'control' in Art. 235 of the Constitution is not defined the Supreme Court has spoken repeatedly on the scope of the term in such explicit terms that the ambit of the power of control over the subordinate judiciary remains well explained. It is in this background that the question which arises in this case calls for determination. It is a question of some importance in that it calls for demarcation of the functions of the High Courts and the Governments of the states in the matter of disciplinary action against a judicial officer of the state.

(2.) SRI P. Kumara Menon, who was a Munsiff from 1969 was posted as Sub Divisional Magistrate, Kanjirappally and while he was functioning as such Sub Divisional Magistrate a memo of charges was issued to him in december, 1971 charging him with grave misconduct. The main charge against him was that he, while functioning as Sub Divisional Magistrate, Kanjirappally, used to receive illegal gratification either directly or indirectly from parties as well as Advocates involved in the cases on the file of his Court misusing his official status as the Presiding Officer of the Court. Since the charges were denied, an enquiry was caused to be held by the District Judge, kottayam. After considering the inquiry report, copy of which is Ext. P3 in the case, the High Court did not agree with the conclusion reached by the Enquiry officer in respect of charges Nos. 1 and 2. Charge No. 1 was the main charge to which we have adverted. On the evidence the High Court found that charges 1 and 2 stood proved. By Ext. P4 order the High Court besides finding that charges 1 and 2 stood proved by the evidence adduced at the enquiry held that the petitioner was unfit to be retained in the judicial service. The petitioner had been placed under suspension in the meanwhile. The report of enquiry was forwarded to the Government along with the recommendation of the High Court that the petitioner should be dismissed from service.

(3.) REFERENCE may be made to Ext. P4. After considering the material adduced in the inquiry the High Court found that charges Nos. 1 and 2 were proved against the delinquent officer, the petitioner in this case. Ext. P4 concluded with these words: "in view of the finding reached, on the first charge that the accused officer has been guilty of corrupt conduct involving the demand and receipt of illegal gratification he is unfit to be retained in the judicial service and the proper punishment to be imposed on him is dismissal from service. " This was the material on the basis of which the government issued the memo to the petitioner mentioning inter alia: "the report along with the records of the enquiry was examined very carefully by the High Court and it was found that charges 1 and 2 framed against the officer were proved. As regards these two charges, the high Court has come to a conclusion different from the one arrived at by the Inquiring authority. As regards charge No. 3, the finding of the Inquiring Authority has been accepted by the High Court. The reasoning for arriving at a different conclusion as regards charges Nos, 1 and 2 has been explained by the High Court in the annexure In view of the seriousness of the matter, the High Court has decided that Sri. P. Kumara Menon should be dismissed from service and that pending the passing of the final orders in the disciplinary proceedings he should be suspended from service as per order No. D2-1396/71/b2 dated 2411975 of the High Court. The High Court has now requested the Government to take necessary steps for implementing the decision of the High Court. Government examined the enquiry report and the annexure forwarded by the High Court in detail with the relevant records. They agree with the recommendations of the High Court. Government therefore provisionally propose to dismiss Sri. P. Kumara Menon from service with effect from the date on which he was placed under suspension. " This was the basis for the show cause notice. The reply to this filed by the petitioner is rather elaborate. The final order passed by the Government thereafter, Ext. P8, after referring to the history of the enquiry proceeds to deal with the matter thus: "the enquiry report and the recommendation of the high Court was examined by the Government and a provisional decision to accept the recommendation of the High Court was arrived at. In the memo cited second, sri. Kumara Menon, was requested to show cause against the proposed action of the Government. After examining all the relevant records and the explanation submitted by Sri. Kumara Menon, the Governor of Kerala has decided to accept the recommendation of the High Court and order his dismissal from service. "