GAUHATI HIGH COURT Vs. STATE OF ASSAM

JUDGEMENT

(1.) Gauhati High Court, represented by the Registrar (Judicial) has filed this petition under Article 226 of the Constitution of India seeking a declaration that Rules 13 to 16 of the Assam Services (Discipline and Appeal) Rules, 1964 (for short, 1964 Rules) in so far as they apply to members of Assam Judicial Service governed by the Assam Judicial Service Rules (for short, 1967 Rules) in respect of disciplinary matters are ultra vires the Constitution and seeking a Writ of Certiorari quashing Notification dated 2-6-90 issued by the Secretary, Judicial Department, Government of Assam and the order on the basis of which the Notification has been issued. By this Notification, third respondent, a Judicial Officer, who had been earlier dismissed from service by the Governor of Assam on the recommendation of the High Court was reinstated setting aside the decision of the High Court that he is guilty of gross misconduct warranting punishment of dismissal from service. Respondents have filed counter affidavits. We have heard Shri N. M. Lahiri, learned counsel for the petitioner, learned Advocate General, Assam and Shri D. N. Choudhury, learned counsel for third respondent.

(2.) The fact of the case can be summarised as follows :-

(3.) Shri Lahiri, learned counsel for the petitioner has taken us through the relevant provisions of the Constitution including Article 235 and also almost all the decisions of the Supreme Court having a bearing on the subject and a decision of the Andhra Pradesh High Court to contend that the provision for appeal to the Government against the penalty imposed on a Judicial Officer governed by Article 235 and the 1967 Rules is ultra vires Article 235 as it militates against the doctrine of independence to Judiciary enshrined in Article 235 and other provision, the right of appeal to the Governor is unconstitutional and, therefore, the order of the Government reinstating third respondent is bad in law. Learned counsel, dealing with the protection in Article 235 to conditions of service and right of appeal granted to a Judicial Officer by the Rules framed by the Governor, submitted that as long as the right of appeal is provided in the Rules, the Judicial Officer has the right to invoke it but if a Minister or the Government or Secretary to the Government is to hear such an appeal and pass an order sitting in judgment over the report of the Enquiry Officer, in this case, a Judge of the High Court and the recommendation of the High Court, such action would be violative of Article 235 and the principle of independence of Judiciary enshrined in the Constitution. To a query by the Court as to how the right of appeal is to be effectuated if the Governor or the Government cannot be the appellate authority, Shri Lahiri submitted that either there should be a right of appeal to the Full Court of the High Court on the Administrative side and not a right of appeal to the Governor or the Government or, if appeal could lie to the Governor or Government, the appeal should be forwarded to the High Court and the recommendation of the High Court as to the manner of disposing the appeal has to be obtained from the High Court and the Governor/Government should act on the recommendation and dispose of the appeal. Learned Advocate General, Assam and Shri D. N. Choudhury supported the vires of the impugned Rules and contended that there is nothing wrong in the Governor/Government sitting in judgment over a decision of the High Court on the Administrative side as it is consistent with the service conditions of Judicial Officers of the State and the provisions of 1967 Rules, that neither the provisions in the 1964 Rules, nor the impugned order violate the principle of independence of Judiciary or Article 235 of the Constitution. They contended that since conditions of service and the Rules provide for appeal as specifically permitted by the later part of Article 235 they cannot be held to be illegal. Control of the High Court over Judicial Officers is subject to the operation of the later part of Article 235. They also argued on the merits in support of the impugned order, which according to Shri. Lahiri is insupportable on facts.