S SRINIVASAGAM Vs. REGISTRAR HIGH COURT MADRAS

JUDGEMENT

(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.

(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. 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.) 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:?