R M GAJJAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this petition the two petitioners who were appointed as class III employees on the establishment of the Civil Courts at Rajpipla and Jambusar in the District of Broach by the District Judge Broach have challenged the final order of the District Judge along with the order of the High Court at Annexures G and H as per which they have been removed from service. The petitioners had been chargesheeted by (he District Judge on December 22 1971 for falsely identifying three persons before the then Civil Judge Junior Division and Judicial Magistrate F. C. Sivli as per Ex. A. In the disciplinary enquiry which was instituted on this chargesheet at Annexure A the petitioners had admitted the charges and prayed for mercy. The District Judge by the order dated June 5 1974 at Annexure D passed the order to withhold future promotions with permanent effect. The High Court however considered the punishment grossly inadequate and therefore under Rule 23 of the Gujarat Civil Services (Discipline and Appeal) Rules 1971 hereinafter referred to as the rules issued a show cause notice at Annexure E on September 6 1974 to enhance the punishment to one of removal from service. After hearing the petitioners the High Court passed an order at Annexure G dated December 30 1974 observing that it was not safe to continue persons like the delinquents who hove committed a serious and grave misconduct in the service of the judicial Department. The penalty imposed upon them by the competent authority being grossly inadequate it was considered that adequate punishment looking to the serious and grave misconduct of the petitioners could not be less than removal from service. Accordingly the District Judge Broach by the order at Annexure H in pursuance of the High Courts order has removed from Government service the two petitioners with effect from December 23 1974 It is these wo orders at Annexures G and H by the High Court and by the District Judge removing the present petitioners which are challenged in this petition.

(2.) When the matters came up for hearing before the learned Single Judge as the question arose as to the competence of the High Court to review the penalty by exercising powers under Rule 23 and as the relevant rule merely provided this review power being exercised by the authority to which an appeal against the order imposing the penalty would lie and as no such authority could be clearly spelt out in the rules the learned Single Judge aFter considering the relevant provisions and the historical background of the various constitutional reforms wanted to rest the source of this power in the Constitutional control of the High Court under Article 235 consistent with which alone all these disciplinary rules could be properly read. The difficulty which however the learned Single Judge experienced was that a Division Bench in RAMESH C. MASHRUVALA V. STATE 16 G. L. R. 277 had in the case of Registrar Small Causes Court proceeded on a restricted interpretation of Article 235 as being confined only to persons in the Judicial service of the State as defined in Article 236 (b) on misapprehension of the true ratio of STATE OF WEST BENGAL V. NRIPENDRA NATH BAGCHIS CASE A. I. R. 1966 S. C. 447. This being the question of wide public importance as to the true interpretation of Article 235 which embodied the cardinal principle of the independence of judiciary he has made this reference to this larger bench formulating the following two questions in this reference:

(3.) It is true that while this reference was pending the decision in Mashruvalas case has been set aside by their Lordships in the decision in STATE OF GUJARAT V. R MASHRUVALA 1977 (2) S. C. C. 12. Their Lordships reversed on facts the view of the Division Bench by holding that on a true interpretation of the various provisions of the presidency Small Causes Courts Act 1882 the Registrar of a Small Causes Court exercised judicial powers heard suits passed decrees which were appealable and therefore he was a person holding a civil Judicial post inferior to the post of a District Judge and was in judicial service as defined in Article 236 (b) which means a service consisting exclusively of persons intended to fill the post of District Judge and other civil judicial posts inferior to the post of District Judge. Therefore their Lordships held that the Registrar inasmuch as he exercised judicial functions was a Judicial Officer in Judicial Service and clearly came within the scope and intent of Articles 235 and 236 because Article 235 in fact vested control in the High Court in respect of persons belonging to the judicial service of a State and holding any post inferior to the post of a District Judge. It was further pointed out that the fact that the High Court was not the appointing a authority was not relevant in regard to the disciplinary jurisdiction of the High Court which was clearly vested under Article 235. Finally at page 14 it was held that the High Court had abdicated its own disciplinary jurisdiction. The independence of the judiciary had been emphasised by the Supreme Court in unmistakable terms in the decision in HIGH COURT OF PUNJAB AND HARYANA V. STATE OF HARYANA 1975 (1) S.C.C.843 AND SAMSHER SINGH V. STATE OF PUNJAB A.I.R. 1974 S.C. 2192. These decisions have proceeded only ors a true interpretation of the later part of Article 235 because Article 235 clearly includes in this wide control after the present Constitution even persons in the judicial service as defined in Article 23G (b). It was sufficient for their Lordships to rest their decision on this narrow ground because the Registrar having been found to be a member of the judicial service because of his judicial functions in terms fell in the later part of Article 235 because of the inclusive clause. The wider question therefore which was assumed by the Division Bench that Article 235 even in the earlier portion when it was worded in the widest language as vesting control over the District Courts and courts subordinate thereto would also get confined in its scope only to the persons in the judicial service was a question which still remains to be answered in the present reference. The entire cantena of decisions of the Supreme Court have been only so far as inclusive later part is concerned where by the very terms of this inclusion the framers of the Constitution have clinched this question of the disciplinary control over the members of the judicial service.