MOHAMMAD ILYAS ALVI Vs. STATE OF MAHARASTRA

JUDGEMENT

(1.) BY this petition under Article 226 and 227 of the Constitution of India, the petitioner seeks to get quashed the order of his dismissal of date 30-8-1961 and also to get quashed the further order of dismissal of his appeal of date 16-10-1962. The petitioner further prays for issuance of a writ of mandamus to the respondent, namely, the State of Maharashtra, to treat the petitioner as if the orders dated 30-8-1961 and 16-10-1962 were not passed.

(2.) THE petitioner joined the Provincial Judicial Service of the State of Madhya Pradesh. He was recruited as a Civil Judge, Second Class. On the eve of reorganisation of States, that is on 31st October 1956, the petitioner was holding a post of an Additional District and Sessions Judge (confirmed) at Seoni. , He was allotted on reorganisation to the State of Bombay. The petitioner in the reorganised State of Bombay was holding a post of Assistant Judge and at the material time, that is on 30th September 1959, the petitioner was holding a post of an Assistant Judge and Additional Sessions Judge, Sangli. Prior to his posting at Sangli, the petitioner was holding a post of an Assistant Judge and an Additional Sessions Judge at Amravati. The High Court on certain information received by it had directed the District and Sessions Judge Amravati, Shir Hadole and also the Anti-Corruption Department to hold a confidential enquiry into the conduct of the petitioner. On receiving the confidential report and on its perusal the High Court was of the opinion that there was a prima facie case for a regular departmental enquiry to be started against the petitioner. The High Court recommended to the State Government that a departmental enquiry should be started against the petitioner and that the District and Sessions Judge at Nagpur Shri Seth should be appointed an Enquiry Officer. The recommendations of the high Court were accepted by the State Government and by its letter of date 30th September 1959 the State Government informed the Registrar of the High Court that the recommendations of the High Court were accepted, that Mr. Seth, District Judge, Nagpur, was appointed in Enquiry Officer to hold the enquiry and further requested the Registrar to communicate this order to the petitioner and also to request the petitioner to proceed on leave immediately pending completion of the department enquiry as an alternative to suspension. The order which the Government had made in this respect was sent to Mr. Seth, District Judge, Nagpur. Intimation of the aforesaid communication was duly given by the Registrar to the petitioner. Mr. Seth framed charges and communicated to the petitioner on or about 8th December 1959, the charges framed against the petitioner and the statements of allegations on the basis of which the charges were framed. The charges framed against the petitioner were two. The first charge framed against the petitioner was that he was guilty of dishonourable and corrupt conduct and had indulged in corrupt practices while working as First Additional District and Sessions Judge, Amravati during the period from 21-6-1957 to 31-3-1959. In the first charge framed, two specific instances, instances (a) and (b), of the corrupt practices were given. The second charge was that the petitioner knowingly associated himself with litigants whose matters had been decided by him or whose matters were pending before him and were to be heard by him and that he had conducted himself in a manner which was unworthy of a person occupying a judicial office and had thereby brought the judiciary in disrepute. The petitioner after receiving the charges, duty filed his written statement on 22-12-1959. Mr. Seth after holding a departmental enquiry submitted his report of date 27-2-1960. On 30-8-1960, a show cause notice was issued to the petitioner calling upon him to show cause within 30 days of the receipt of the notice why the proposed action, namely, dismissal, should not be taken against him. . The petitioner showed cause by his reply dated 20-9-1960. After considering the reply, the order of dismissal was made on 30-8-1961 by the Governor of Maharashtra. The order is signed by the Secretary to the Government of Maharashtra, Law and Judiciary Department, by order and in the name of the Governor of Maharashtra. Along with the order of dismissal of the petitioner a copy of the extract of the letter from the Secretary. , Maharashtra Public Service Commission, was also sent to the petitioner. On 14-9-1961, the petitioner submitted an appeal to the Governor through the Secretary, Law and Judicial Department and the Registrar, High Court, purporting to be one under Rule 57 of the Civil Services (Classification, Control and Appeal) Rules which have been incorporated as Appendix I in the Bombay Civil Services Conduct, Discipline and Appeal Rules. This appeal was dismissed by an order dated 16-10-1962. By this petition which has been instituted on 17th December 1962, the petitioner, as already stated, is seeking to get quashed these two orders, the order of his dismissal and the order dismissing the appeal against the order of dismissal.

(3.) MR. Phadke, learned counsel for the petitioner, has raised three contentions before us Mr. Phadke first contends that the order made by the Governor on 30th September 1959, appointing Mr. Seth to hold a departmental enquiry in respect of the alleged charges was wholly without jurisdiction, consequently all further orders made, namely, the report of Mr. Seth and the order of dismissal made by the Governor have been vitiated and are invalid and inoperative in law. The jurisdiction to hold a departmental enquiry and to appoint an officer to hold a departmental enquiry exclusively vests in the High Court. Secondly, Mr. Phadke contends that even assuming that the Governor contends that even assuming that the Governor had jurisdiction to appoint an enquiry officer to hold an enquiry, the order of dismissal made is vitiated being one in contravention of principles of natural justice. And lastly, Mr. Phadke contends that the right of appeal which has been conferred by Rule 57 on the petitioner has been denied to him inasmuch as independent mind had not been applied to the consideration of his appeal. Mr. Kotwal, learned Government Pleader, on the other hand, contends that the jurisdiction to hold a departmental enquiry exclusively vests in the Governor and therefore, the order made by the Governor on 30th September 1959 appointing Mr. Seth to hold a departmental enquiry was a perfectly valid order made with jurisdiction. The order of dismissal made by the Governor has not been vitiated by reason of contravention of any principles of natural justice, and lastly, Mr. Kotwal contends that the petitioner gets no right of appeal under the aforesaid Rule 57. We would proceed to consider these contentions of the respective parties seriatim.