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Judgment
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:
(1) That you, Thiru. S. Srinivasagam, formerly Prl. Sub Judge, Tirunelveli now sub Judge, Srivilliputhur while you were functioning as Prl. Sub
Judge, Tirunelveli, demanded a sum of Rs. 60,000 on 3-4-87 as bribe from one Thiru E Sankara Subbu, Director of Shiva Kumara Spinning Mills,
Tirunelveli, who is one of the parties to the suits in O.S. 77/81, 112/81, 115/81 and 119/81 for decreeing the above suits and other 4 connected
suits (total 8 suits) in his favour and the said E. Sankara Subbu and his brother Gopalakrishnan met the delinquent Officer on 3-4-1987 and
bargained for Rs. 35,000 and on the night of 16-4-87 they have paid Rs. 10,000 as advance but the delinquent Officer gave back the sum of Rs.
10.000 saying that he would deliver the Judgment only after vacation and asking them to meet him after a month but has suddenly pronounced
Judgment on 24-9-87 against him that it is apprehended that since he was not in a position to pay Rs. 35,000 you had received huge amount from
the other side and hurriedly pronounced Judgment. Thus you had contravened R.20 of the Tamil Nadu Government Servants, Conduct Rules,
1973.
That you Thiru S. Srinivasagam, 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 prepared 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 approached 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 5.12.1.388 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 had 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.
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.
The first contention of the Learned Counsel for the petitioner, even though comprise of seven propositions of law, relates only to one cardinal
point, that is, whether the High Court had jurisdiction to impose the punishment of dismissal, having regard to the constitutional and statutory
provisions of law. We must, therefore, start with the constitutional provisions. The relevant articles are Arts.234 and 235 of the Constitution of
India. The statutory Rules are The Tamil Nadu State Judicial Services Rules (hereinafter called ''The State Rules'') framed under Art.234 and the
proviso to Art.309 of the Constitution of India and the C.C.A Rules framed under proviso to Art.309 of the Constitution of India. For a better
under-standing of the rules, I will extract the necessary provisions:
Article 234 of the Constitution of India is as follows:�
Appointments of person other than district Judges to the Judicial Service of a State shall be made by the Governor of the State in accordance
with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in
relation to such state.
Article 235 of the Constitution of India is as follows:�
The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons
belonging to the Judicial service of a State and holding any post inferior to the post of District Judge shall be vested in the High Court, but nothing
in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions
of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under
such law.
Rule 2 (b)(2) of the State Rules reads as follows:�
2(b)(2) ''Appointing authority. ''�''
''Appointing authority'' means�
(a) in the case of appointment to the post of District Munsif or to the post of Additional Judge of the City Civil Court, the Governor; and
(b) in the case of promotion of a District Munsif as a Subordinate Judge, the High Court.
Rule 2(b)(13) of the State Rules reads as follows:
(13) ''Promotion''� ''Promotion'' means the appointment of a District Munsif, as a Subordinate Judge.
Rule 4 (ii) of the State Rules reads as follows:
(ii) The posts of Subordinate Judges shall be filled by Promotion from District Munsif. All promotions shall be made on grounds of merits and
ability, seniority being considered only where merit and ability are approximately equal.
Rule 4-A of the State Rules as introduced by G.O.Ms. No. 1423, Home (Courts I) Department dated 20.6.1988 is as follows:�
VI(a), Special Provisions with respect to direct recruitment of Subordinate Judges:�
(1) Notwithstanding anything contained in R.4, the vacancies which exist on 3-5-88 in the category of Subordinate Judge shall be filled up both by
direct recruitment and by promotion from the category of District Munsif in the ratio of 1:1 and the provisions of other rules applicable to the
holder of the post of Subordinate Judge shall, subject to the following modifications, apply to the Subordinate Judge, directly recruited.
The selection for appointment to the category of Subordinate Judge shall be made by the High Court, Madras and the appointment thereto shall
be made by the Governor.
xx xx xx xx xx.
Rule 12(1)(2) of the C.C.A. rules is as follows :
12(1) The State Government may impose any of the penalities specified in items (i) and (iii) to (viii) in R.8 of on members of the State Service;
Notwithstanding anything contained in these rules and in Appendix IV the Heads of Departments concerned may impose any of the penalties
mentioned in items (i), (iii) in so far as it relates to withholding of increments and (v) in R.(8) on all members of the State Service other than such
member who are immediately below such Heads of Departments, Vide G.O.Ms. No. 185, P. and A.R. dated 12-3-88.
Provided that if the Governor of Tamil Nadu is himself the appointing authority for any service or a class or category thereof, he may himself
impose any of the said penalties on members of that service, class or category, as the case may be.
The argument is that Art. 234 of the Constitution of India is very clear that the appointment of Persons other than District Judges shall be made
by the Government of the State. No doubt, the appointment will be in accordance with Rules made by the Governor in consultation with the Tamil
Nadu Public Service Commission and the High Court But the emphasis is that the appointment is only made by the Governor. The control talked
of in Art.235 relates only to posting and promotion and the grant of leave and these powers are vested exclusively with the High Court. Therefore,
the State Rules cannot purport to make the High Court, the Appointing Authority, Rule 2(b) of the State Rules should, therefore, be under stood in
the context of the constitutional provisions as well as R.4A and R.12 of the C.C.A. Rules. According to Mr. P. Chidambaram, Learned Counsel
for the petitioner, there are only three places in the state Rules which refer to the Appointing Authority. They are R.11, R.16 E and 20. Therefore,
the definition in Rule 2(b) of the State Rules in only with reference 10 the said three rules and, so read, the Constitutional Provision as contained in
Art.234 is not violated. The subsequent introduction of R. 4B though relates only to direct recruitment of Subordinate Judges, makes it very clear
that the Selection for appointment to the category of Subordinate Judge shall be made by the High Court and the appointment there to shall be
made by the Governor. There cannot be different provision of law for Subordinate Judges directly recruited and subordinate judge promoted from
the rank of District Munsif. To construe R.2(b) of the State Rules as providing one appointing authority for promotee Subordinate Judge and
another appointing authority for directly recruited Subordinate Judges will be doing violence to the provisions of law. Therefore, such an
interpretation should be avoided and R.2(b) should be read down to be applicable only to Rr.11, 16E and 20, of the State Rules. Further, R.12 of
the C.C.A. Rules also says it is only the Government which can pass any of the major punishments. Alternatively, Mr. P. Chidambaram argues,
even assuming that the High Court is the Appointing Authority for promotee Subordinate Judges, there is nothing wrong in the C.C.A. rules
providing for a separate disciplinary authority to impose major punishment and the same will not violate Art.311(1) of the Constitution of India.
In support of the contention Mr. P. Chidambaram relies on the decision in Baradakanta Mishra Vs. High Court of Orissa and Another, That
was a case where one Mishra was appointed as District Munsif. He was later, promoted as a Sub-Judge. A separate cadre with the designation of
Additional District Munsif (Judicial) was created by the Government and the said Mishra was appointed to that cadre. That cadre is admittedly
below the rank of a District Judge. The question involved in that case related to reversion of Mishra from the special cadre to the rank of sub judge
on 15.1.1963. The writ petition against the said reversion order was dismissed by the High Court of Orissa and the SLP was also dismissed. On
5.2.1968 Mishra was again appointed by the High Court exercising power under R. 10 of the Orissa Superior Service Rules, 1963 as Additional
District Magistrate (Judicial). On 31.7.1968, Mishra was appointed as Additional District Judge by the Governor of the State. On 8.12.1972,
against the punishment of reduction in rank was imposed from Additional District Judges to Additional District Magistrate. The order was passed
by the High Court in pursuance of the control vested under Art.235 of the Constitution of India. Due to certain irregularities committed as
Additional District Magistrate, enquiry was conducted and the High Court imposed the punishment of dismissal on Mishra. This order was again
passed in exercise of the powers under Art.235 of the Constitution of India. The question, therefore, was whether the order passed by the High
Court was valid. The following observations are relied on by the petitioner :
The High Court within the power and control vested under Art.235 could hold disciplinary proceedings against the appellant and could
recommend the imposition of Punishment of reduction in rank of the appellant. The actual power of imposition of one of the major Punishments
viz., reduction in rank is exercisable by the Governor who is the appointing authority. The order passed by the High Court on 8 December, 1972
reducing the appellant in rank is unconstitutional and is quashed.
In Braja Kishore Das v. The State of Orissa AIR 1965 Orissa 183, it was held that in the case of a Subordinate Judge, the authority to pass the
order of punishment is the State Government.
As against the above arguments, it is contended on behalf of the respondent that the State Rules having been framed in exercise of the powers
under Art 234 of the Constitution of India should be accepted as the law on the subject. Therefore, Rule 2(b) of the State Rules should be given
the full meaning and in respect of the promotee Subordinate Judge, it is the High Court which is the appointing authority. The Governor in making
the rules has invested the High Court with the power to appoint Subordinate Judges by promotion from the rank of District Munsif. Therefore, it is
contended that R.2(b) cannot be confined only to Rr.11, 16E and 20 of the State Rules, it is specifically argued that. R. 4A as introduced by
G.O.Ms No. 1423, dated 20.6.1988, is only in respect of direct recruitment of Subordinate Judges and it will not be applied to the promotee
Subordinate Judge. The respondent has not met the arguments based on R. 12 of the C.C.A. rules. That apart, I may also advert to the recent
decision of the Supreme Court in Registrar, High Court of Registrar, High Court of Madras Vs. R. Rajiah, No doubt that cases relates only to the
compulsory retirement of two District Munsifs. In that case, the order of Compulsory retirement was made by the High Court whereas R.56-d of
the Fundamental Rules only enables the appointing authority namely, the Government to exercise the power. After considering all the earlier
Judgments the Supreme Court held as follows :
The control of the High Court, as understood, will also be applicable in the case of compulsory retirement in that the High Court will, upon an
enquiry, come to a conclusion whether a member of the subordinate Judicial service should be retired prematurely or not. If the High Court comes
to the conclusion that such a member should be Prematurely retired, it will make a recommendation in that regard to the Governor inasmuch as the
Governor is the Appointing Authority. The Governor will make a formal order of compulsary retirement in accordance with the recommendation of
the High Court.
On a consideration of all the points raised by the Counsel for the petitioner as well as the respondent, I am inclined to hold that the appointing
authority in respect of Subordinate Judges can only be the Governor and not the High Court. I am of the opinion that if the argument of the
respondent is accepted, the position will be that the appointing authority, in respect of a promotee subordinate Judge is the High Court and the
appointing authority in respect of a directly recruited subordinate Judge is the Governor. Such a state of affairs will be very anomalous.
Accordingly, an interpretation which will harmonize with the apparent inconsistencies should be adopted. To me, it appears, that the sub-rule 2 of
R. 4A introduced in GOMs. No. 1423, dated 20.6.1988 should be applied in respect of promotee Subordinate Judge also. In other words, the
selection for promotion shall be made by the High Court and the appointment accepting the recommendation of the High Court, should be made
by the Governor. I am also in agreement with the submission made by Mr. Chidambaram that in any event, R.12 of the C.C.A. Rules cannot be
ignored. According to the said rule, it is only the Governor who can pass an order of major punishment.
In the counter affidavit, there is also a reference to the decision in Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Others, .
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.
The Supreme Court in that case categorically held after referring to the words ""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:�
Disciplinary jurisdiction and a complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal,
reduction in rank of District Judges, and initial posting and promotion to the cadre of District Judges. In the exercise of this control, the High Court
can hold inquiries against a member of the subordinate judiciary, impose Punishment other than dismissal or removal, subject however, to the
conditions of service, and a right of appeal, if any, granted there by and to the giving of an opportunity of showing cause as required by Art.311(2).
Though my finding on the first and foremost question involved in the writ petition is sufficient to dispose of the writ petition, it is but proper that I
give my findings on the other points raised in the writ petition. The second point relates to the examination of P.W. 5 at the instance of the direction
of the Full Court. Learned Counsel says that the C.C.A. rules do not contain any power vesting with the disciplinary authority to direct the Enquiry
Officer to examine an additional witness and submit the record of evidence for the consideration of the Disciplinary Authority. Learned Counsel
argues that the Central Civil Services (Classification and Appeal) Rules do provide a machinery in the form of Rules 14 and 5 But the argument, is
if such a power is conceded in the disciplinary authority by way of analogy, then the disciplinary authority should have asked the Enquiry Officer to
submit a finding on the basis of the evidence of the additional witness. In this case, the direction was only to send the record of evidence and there
was no second enquiry report by the Enquiry Officer. Rightly it is argued that the delinquent officer had no opportunity at all to question the
veracity and the relevancy of the evidence of P.W. 5. He had no forum before which he could question the evidence of P.W. 5. In my opinion, this
argument is well taken and to that extent there is certainly violation of the principles of natural justice. Along with this point, I can deal with the
other point that the Enquiry Report was not furnished to the petitioner before the impugned order was passed. It is not necessary for me to go
through the entire catalogue of cases on this point because the Judgment of the apex court in Union of India and others Vs. Mohd. Ramzan Khan,
has set the controversy at rest. Therefore, if the Enquiry Report ought to have been furnished to the petitioner, it goes without saying that there
must have been an enquiry report after the examination of P.W. 5 and inasmuch as there was no report at all after the examination of P.W. 5, the
disciplinary proceedings are vitiated. In this case, admittedly even in respect of the first enquiry report, the same was not furnished to the petitioner
before the impugned order was passed.
So far as the other factual contentions urged by Mr. P. Chidambaram that after P.W. 5 was examined, only one learned Judge has expressed
his opinion and there is no proof that the other learned Judge had also expressed his opinion are concerned, I find that the records do not bear out
such a case. I find that the opinion expressed by one learned Judge has been agreed to by the other learned Judge and the records bears ample
testimony to this. I am not also impressed with the arguments questioning the decision of the Committee as well as the Full Court in accepting the
evidence of P.W. 5 and holding the petitioner guilty of the first charge. It is now well settled that the High Court cannot go into the factual
assessment of evidence by the Disciplinary Authority. Rightly, the Learned Counsel for the respondent relies on the judgment of the Supreme
Court in Kailash Chander Asthana Vs. State of U.P. and Others, But I have already held that the petitioner had no opportunity to question the
veracity and relevancy of the evidence of P.W. 5, On this ground, I have already held that the proceedings are vitiated. For all the above reasons,
the writ petition is allowed as prayed for. Rule Nisi is made absolute. There will, however, be no order as to costs.