PRATAP SINGH JAIN Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The petitioner is aggrieved against an order of dismissal from service. The petitioner was a member of the U. P. Civil Service (Judicial Branch ). The petitioner was appointed as Munsif on July 14, 1952. In the course, in May, 1960, he was promoted as Civil Judge. He functioned as such till October 13, 1969 when he was placed under suspension pending enquiry against him on charges of corruption, etc. The disciplinary enquiry was held by the Administrative Tribunal under the Disciplinary Proceedings (Adminis trative Tribunal) Rules, 1947. The Tribunal held the enquiry and found cer tain charges proved against the petitioner. The Tribunal recommended that the petitioner be dismissed from service. In due course, the recommendation of the Tribunal was considered by the High Court. The High Court concurred with the findings and recommendation of the Tribunal. Ultimately, the Governor by his order dated May 27, 1972 dismissed the petitioner from service. The petitioner challenged the order of dismissal by way of a writ petition filed in the High Court. The learned Single Judge who heard the writ petition allowed the same on July 31, 1975. It was held that the enquiry against the petitioner was commenced at the instance of the High Court, It was also held that the petitioner had failed to establish that the findings of the Administrative Tribunal were based on no evidence. The writ petition, however, succeeded on two other points. The Court held that after receipt of concurrence of the High Court on the findings of the Administrative Tribunal the Governor had issued to the petitio ner a notice to show cause why he may not be dismissed from service. After re ceipt of the petitioner's representation in reply, the Governor should have refer red the matter to the High Court for securing its recommendation as to the punishment to be awarded to the petitioner. But this was not done. The Gover nor directly issued the order dismissing the petitioner. The Governor's order was held to be invalid for not consulting the High Court in the matter of punishment. In the next place, it was held that the Administrative Tribunal had refu sed to the petitioner assistance of a trained lawyer. This refusal amounted to denial of reasonable opportunity of defence contemplated by Article 311 of the Constitution. For this view, reliance was placed on the decision of this Court in Amrish Kumar Sharma v. State of Uttar Pradesh (1974 A. W. R. 251 ). On this ground also the impugned order could not be sustained. It may be stated here that this view was overruled by a Full Bench of this Court in Jyoti Swarup Agarwal v. State of Uttar Pradesh and another (1979 A. L. R. 403. ). The view of the Full Bench was upheld by the Supreme Court in Sunil Kumar Banerjee v. State of West Bengal and others (A. I. R 1980 SC. 1170) and A. K. Roy v. Union of India and another (AIR. 1982 SC. 7 10 para. 95. ). Soon after the decision of the petitioner's writ petition by this Court on July 31, 1975, the Governor enacted the U. P. Disciplinary Proceedings (Ad ministrative Tribunal) (Second Amendment) Rules, 1975. In view of these amended rules, the matter against the petitioner was again referred to the Administrative Tribunal. The Administrative Tribunal considered the evi dence recorded by it on the earlier occasion and recommended that the char ges levelled against the petitioner have been proved and that he be dismissed from service. The report of the Tribunal was considered by the full Court of the High Court. The High Court agreed with the conclusion and recommen dation of the Tribunal. It recommended to the Governor by its letter dated December 18, 1979 that the petitioner be dismissed from service. Accordingly the Governor passed the order of dismissal on February 27, 1980 Aggrieved against the order of dismissal, the petitioner has again come to this Court. The order has been challenged on the following grounds: (1) In view 'of Article 323-A of the Constitution the Adminis trative Tribunal had no jurisdiction to hold an enquiry against the petitioner; (2) The Tribunal did not afford an opportunity of hearing in violation of Rule 14 (4) of the Rules; (3) Copy of the report of the Tribunal was not given to the petitioner. Thus Rule 10 of the Rules was infringed; and (4) The recommendation of dismissal made by the Tribunal violated Article 235 of the Constitution. The first point is misconceived. Article 323-A of the Constitution con templates the constitution of administrative tribunals by law to be made by Parliament. The law so made by Parliament could under sub-article (2) provide for exclusion of the jurisdiction of Courts with reference to disputes or complaints for the adjudication of which the Administrative Tribunal has been constituted. Article 323-A by its own force does not exclude the jurisdiction of any Court or Tribunal in respect of adjudication of any disputes referable to it under any existing law. It authorises Parliament to create tribunal by law and make all supplemental, incidental and consequential provisions therefore. Admittedly no such law has till now been framed by Parliament. No Ad mi ni strative Tribunal as contemplated by Article 32-A has come into existence as yet The Administrative Tribunal which had jurisdiction under the Rules of 1947 continues to possess that jurisdiction. The next submission of learned counsel was that no opportunity of hear-in e as contemplated by Rule 14 (4) of the 1975 Rules was afforded to the petitioner. Rule 14 (4) provides; " (41 Where the case falls in categories (b) and (iii) mentioned in sub-rule (1) then subject to the orders, if any, of any Court of law the Governor may recall the notice or order of punishment and issue a fresh notice to show cause along with a copy of the findings of the Tribunal or of its recommendations as to punishment, as the case may be and take further action thereafter accordingly". Sub-rule (1) of Rule 14 provides: " (1) Where any proceeding having been taken under the said rules, as they stood before their amendment by these rules (hereinafter in this rule referred to as the amended rules), before the commencement of these rules, and (a) the charged Government servant's request for being represented by counsel was rejected by the Tribunal on the ground that Rule 7 of the amended rules did not permit such request being gran ted; or (b) after the conclusion of the inquiry by the Tribunal the charged Government servant was asked to show cause against a proposed penalty of dismissal, removal or reduction in rank but a copy of the findings of the Tribunal or of its recommendation as to punishment was not furnished to such servant; or (c) the inquiry against a charged Government servant being a 'judicial Officer' (as defined in the amended rules) was held by a Tribunal as constituted under the unamended Rules or the punishment was awarded to him without the recommendation of the High Court in this behalf, or the High Court was not consulted at some other stage, then in either of the following case, namely, (i) the proceedings before the Tribunal under the unamended rules are still pending; or (ii) the proceedings before the Tribunal having been concluded, the matter is pending consideration with the Governor or (iii) the validity of any proceeding before the Tribunal or of the order of imposition of penalty has been challenged in a Court of law on any of the aforementioned grounds (a) (b) and (c) and the mat ter is either pending before the Court or such proceeding or order has been adjudicated void by the Court, further proceedings shall be taken in the manner hereafter provided". Clause (b) of sub-rule (1) applies where a copy of the findings of the Tri bunal or of its recommendations as to punishment was not furnished to the Government servant. This was not the case here. The requisite copies were furnished to the petitioner. He made his representation. No such grievance was raised by the petitioner in the earlier writ petition. The petitioner's writ petition succeeded on the ground that after receipt of the petitioner's represen tation to the show cause notice, the Governor did not consult the High Court and so the order of dismissal was bad. In our opinion, the petitioner's case is covered by sub-rule (5) of Rule 14 which provides: " (5) If the case falls under category (c) and either of the categories (i), (ii) and (iii) mentioned in sub-rule (1), then subject to the orders, if any of any Court of law the case shall stand referred to a new Tribunal cons tituted in accordance with sub-rule (7) of Rule 3 of the amended rules, and the new Tribunal shall proceed afresh in accordance with the amended rules. Here the High Court in the earlier writ petition of the petitioner had found that the punishment was awarded to the petitioner without the recommenda tion of the High Court. The case thus was clearly covered by clause (c) of Rule 14 (I) and, on that ground, the order of dismissal was adjudicated void. The case, therefore, fell within sub-clause (ii ). Since the case fell in category (c) and category (iii) clearly, sub- rule (5) was attracted. The petitioner's case stood referred to the new Tribunal which proceeded in accordance with the amended rules. There was hence no occasion for 'the Government to issue a fresh notice to show cause as contemplated by sub-rule (4) of Rule 14. The next submission of Sri S. N. Agarwal appearing for the petitioner was that explanation to Rule 10 was violated. This explanation contemplated giving of the copy of the report of the Tribunal to the charged officer along with the show-cause notice. It will be recalled that this provision was based upon the then existing provision of Article 311 (2) of the Constitution. The Constitution (Forty-Second Amendment) Act, 1976 amended Article 311 (2) and deleted therefrom the requirement of giving the second show-cause notice. Thereafter the Administrative Tribunal Rules were also amended. Rule 10 was substituted by a fresh rule with effect from April 27, 1947. After the amendment the rule did not cast any obligation to serve a copy of the recommendations of the Tribunal on the charged officer, After its amend ment, Rule 10 required the Governor to send the Tribunal's recommendations to the High Court in a case relating to a Judicial Officer and the High Court may pass an order awarding a penalty other than one of dismissal, removal or compulsory retirement itself, or recommend to the Governor the imposition of the penalty of dismissal or removal or compulsory retirement. Thereupon the Governor was to pass the recommended punishment. In view of the amend ment of the rules, there was no obligation to serve a show-cause notice or a copy of the Tribunal's report on the charged officer. This ground of attack also fails. The last ground of attack was that the recommendation made by the Tribunal that the petitioner be dismissed from service rendered the control of High Court over judicial officers incomplete and so it violated Article 235 of the Constitution. In this connection, our attention was invited to the deci sion of the Supreme Court in Chief Justice of Andhra Pradesh and another v. L. V. A. Dikshitulu and others. ( A. I. R. 1979 S. G. 193. 54) In paragraph 38, the Supreme Court has reiterated the well settled principles as to the exclusive nature of the control of the High Court over the subordinate judiciary under Article 235. Learned counsel did not challenge the validity of the rules or the proceedings before the Tribunal on the ground that the enquiry was not held at the instance of the High Court. In fact, the rules contemplated reference to the Administrative Tribunal only if the High Court recommends. The entire decision-making power in this respect vests in the High Court. After the enquiry the Adminis trative Tribunal gives its finding and its recommendation as to the punishment which may be awarded. The recommendation of the Tribunal is not binding on the High Court. Rule 10 (1) of the Administrative Tribunal Rules clearly provides that on receipt of the Tribunal's recommendation the High Court may pass an order awarding a penalty other than the one recommended by the Tribunal. The High Court is not bound to accept the Tribunal's recom mendation. The High Court has to consider the matter and come to its own decision on the question whether the Tribunal's findings should be accepted and if so, what should be the quantum of punishment. We fail to see how, the fact that the Tribunal makes a recommendation as to the punishment which in its opinion, should be imposed on the charged officer renders the control of the High Court incomplete. We find no substance in this submission. Before leaving this case, we wish to make some observations with respect to the procedural aspects of the Rules. Under Rule 4 the Governor refers to the Tribunal for enquiry, cases relating to individual government servants for trial. Rule 4 states:- "4. The Governor may refer to the Tribunal, cases relating to an individual Government Servant or a class of Government Servants in respect of any imputation of misconduct or misbehaviour; Provided that in respect of a case relating to an officer belonging to a service referred to in sub-rule (7) of Rule 3, hereinafter in these rules referred to as a 'judicial Officer' the Government shall make a reference if, and only if so recommended by the High Court. " Under this provision, a case of a Judicial Officer can be referred to the Tri bunal only when recommended by the High Court. The proviso leaves no discretion with the Government not to make a reference if the High Court recommends. The Government is bound to make the reference. Experience is that the Government takes several months after receiving the High Court's recommendation to actually pass an order referring the matter to the Tribunal. This useless delay can well be avoided by making a provision that the High Court may directly refer the case of Judicial Officer to the Tribunal. When the Government has no discretion in the matter it is needless waste of time to require the High Court to send its recommendation 'to the Government and for the Government then to refer the matter to the Tribunal. Generally where the High Court recommends that charges against a Judicial Officer be enquired into by the Administrative Tribunal, the Judi cial Officer is placed under suspension. The relevant rules require that if the suspension lasts for more than six months the charged officer should be given not half but three-fourth of the salary as subsistence allowance, Experience has been that six months or more elapse between the recommendation of the High Court and the actual reference of the case by the Government to the Tribunal. Because of this delay, the Government also suffers avoidable financial loss inasmuch as the charged officer has to be paid a higher subsis tence allowance. In the result, the writ petition fails and is accordingly dismissed with costs. .